UNIVERSITY 

OF  CALIFORNIA 

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THE 

LAW  OF   BAILMENTS 

INCLUDING   PLEDGE,   INNKEEPERS 

AND    CARRIERS 


BY 

JAMES   SCHOULER,  LL.D. 

Althor  of  Treatises  on  the  "Law  ok  the  Domestic  Relations, 
"Wills,"  "Personal  Property,"  and  "Executors" 


BOSTON 

LITTLE,  BROWN,  AND   COMPANY 

1905 


19  05^ 


Copyright,  1880,  1887,  1897,  1905, 
By  James  Schouler. 


THE  UNIVKRSITY    PRESS,    CAMBRIDOE,    U.S.A. 


PREFACE 

The  main  purpose  of  this  volume  is  to  supply  students 
and  the  professional  lawyer  alike  with  an  elementary  treatise 
which  may  serve  for  study  and  practical  use.  It  is  based 
upon  the  author  s  larger  work  upon  this  subject,  and  makes 
use  of  the  lecture  notes  used  by  him  for  twenty  years  or 
more  as  a  Law  School  Professor. 

While  the  whole  field  of  Bailments  is  here  developed, 
special  prominence  has  been  given  to  the  important  topics  of 
Pledge  and  Carriers.  The  latest  cases  have  been  consulted 
and  the  whole  work  brought  fairly  down  to  date,  with  the 
citations  as  full  as  a  volume  of  the  present  compass  may 
pei-mit,  whose  chief  object  is  the  elucidation  of  principles. 
Reference  figures  in  heavy  type  are  to  sections  of  the  original 
work. 

J.  S. 

January  5,  1905. 


CONTENTS 

PART  I. 
Bailments  in  General. 

Paob 

§§  1-4.    Nature,  Essentials,  and  Definition 1 

5.    Leading  Case  (1703)  :  Coggs  v.  Bernard 3 

6,  7.    Classification;   Recompense;  Care 4 

8,  9.    Honesty  and  Good  Faith;  Agency 6 

10.  Special  Contract  Applied 6 

11.  Other  Cardinal  Maxims 7 

12.  Form  of  Action  and  Proof 8 

PART  II. 

Bailments  for  the  Bailor's  Sole  Benefit;  or  without 
Benefit  to  the  Bailee. 

gratuitous  service  about  a  chattel. 

§  13.    Classification  of  the  Subject 10 

14-22.    I.  Matters  Preliminary 10 

23-39.    II.   Accomplishment  of  Bailment  Purpose :   slight  care  — 
honesty  —  special   contract — other   mutual    rights  and 

duties 14 

40-46  a.    III.  Termination  of  Bailment :  redelivery  or  delivery  over 

—  account,  etc 23 


PART   III. 

Bailments  for  the  Bailee's  Sole  Benefit, 
gratuitous  loan  for  use. 

§§47,48.    Classification  of  the  Subject 26 

49-51.    I.  Matters  Preliminary:   mutuality  —  subject-matter  — 

period 26 


Vi  CONTENTS. 

Page 
§§52-60.    II.  Accomplishment  of   Bailment  Purpose:    great  care 
—  good  faith  —  special  contract  —  mutual  rights  and 

duties  —  third  parties 28 

61-63.    III.   Termination  of  Bailment:  demand  —  notice  —  fixed 

period,  etc 31 


PART   IV. 

Ordinary  Bailments  for  MuxnAi.  Benefit. 

CHAPTER  I. 
Bailments  for  Hire  in  General. 

§§  64,  65.    Introductory 33 

66-70.    Contract    for    Hire    and    Essentials:    subject-matter  — 

recompense  —  mutual  assent 34 

71,72.    Bailment   and    Contract    Distinguished;    Non-Contract 

Bailments 36 

CHAPTER    II. 
Hired  Services  about  a  Chattel. 

§  73.    Classification  of  the  Subject 38 

74-78.    I.   Matters  Preliminary  :    vocations  described  —  recom- 
pense —  contract  and  delivery 38 

79-92.    IT.   Accomplishment    of    Bailment   Purpose :     ordinary 
care  —  skill  —  custom    and    special   contract  —  good 

faith  —  mutual  rights  and  duties 40 

93-105.    III.  Termination  of  Bailment :  redelivery,  etc. —  para- 
mount owner  —  lien 48 

CHAPTER   III. 
Hired  Use  of  a  Chattel. 

§  106.    Classification  Stated 55 

107-109.    I.  Matters   Preliminary:    manner  and  period  of  use  — 

contract  and  delivery 55 

110-128.    II.   Accomplishment  of  Bailment  Purpose  :  ordinary  care 

—  deviation  —  misappropriation  —  sub-users  —  letter 

—  the  public  —  special  tei-ms 56 

129-133.    III.   Termination  of  Bailment :  redelivery  —  final  recom- 
pense   66 


CONTENTS.  Vii 

CHAPTER   IV. 

Pledge  or  Pawn. 

Page 

§§  134-141.    Introduction  and  Classification:  pledge,  pawn,  collateral 

security  —  mortgage  and  lien  distinguished  .     ...       69 

142-155.  I.  The  Pledge  Contract:  subject-matter  —  debt  or  en- 
gagement —  mutual  assent  —  ownership       ....        74 

156-166.    II.   Delivery  in  Pledge  :  contract  distinguished  —  agency 

—  informalities 85 

167-189.  III.  Pending  full  Accomplishment:  continuous  posses- 
sion —  ordinary  care  —  use  of  pledge  —  expenses  — 
sub-pledge  —  pledgor's  rights  —  special  contract  terms       91 

190-217.    IV.  Pledgor's  Default  or  Fulfilment:    (a)  remedies  on 
default  by  bill  or  sale,  collection,  etc.  —  by  personal 
suit  —  special  contract,  etc.  —  right  of  redemption     .     104 
(6)  fulfilment  —  tender — -  restoration,  etc 114 

218,  219.    Extinguishment,  Renewal,  and  Extension 118 


PART  V. 

Exceptional  Bailments  for  Mutual  Benefit, 
postmasters  and  innkeepers. 

CHAPTER   I. 

Postmasters. 

§§  220-223.    Exceptional  Bailments  and  their  Elements 120 

224-227.    Exceptional  Rules  as  to  Postmasters:  sovereignty  and 

public  agents  — telegraph,  etc.,  distinguished    .     .     .     121 

CHAPTER  II. 

Innkeepers. 

§§228-238.    Preliminary  Points  :  innkeepers  —  guests  —  property  of 

guest  —  limits 125 

239-252.  Standard  of  Responsibility  :  exceptional  rule  —  exonera- 
tion—  special  contract  and  legislation 129 

253-256.    General    Rights    and    Duties  :    treatment   of    public  — 

recompense  and  lien 134 


viii  CONTENTS. 

PART   VI. 

Exceptional  Bailments  for  Mutual  Benefit. 

common  carriers. 

CHAPTER  I. 
Carriers  in  General. 


Page 


§§257-266.    Bailment  Principle  Applied  :  private  and  public  carriers 

—  land  or  water  —  foundation  of  exceptional  rule       .     137 
267,268.    Development  of  Carrier  Vocation 142 

CHAPTER   II. 

Nature  of  the  Common  Carrier  Relation. 

§§  269-275.  Elements  in  Such  Transportation  :  for  reward  —  in  pur- 
suance of  vocation 144 

276-282.    Carriage  Pursuits  Enumerated  :  by  land  —  by  water     .  148 

283-288.    The  Responsible  Transporter 153 

289,  290.    Kinds  of  Property  Transported 157 

CHAPTER   III. 

What  Constitutes  Bailment  to  the  Common  Carrier. 

§§  291-302.  I.  General  Duty  of  Receiving:  reasonable  hire  —  ade- 
quate means — line  of  vocation  —  equality  statutes,  etc.     160 

303-308.    II.  When   Carrier's   Responsibility  Commences :    time, 

place,  acceptance  for  immediate  transportation,  etc.     165 

309-317.    Preliminary  bailee — loading  and  stowing  —  consignor's 

duties  in  packing,  etc 169 

CHAPTER  IV. 

Bailment  Responsibility  of  the  Common  Carrier. 

§§318-323.    Standard  of  Carrier's  Duty 175 

324-344.  Legal  Liability  Transcends  Duty:  exceptions:  act  of 
God,  of  public  enemies,  of  customer,  of  public  author- 
ity—  responsible  for  servants,  etc 178 

345-351.    Proximate  and  Remote  Cause  Regarded  :  illustrations  — 

evidence  and  proof 191 

352-355.  Miscellaneous  Points  :  carriage  of  animals  —  mixed  cus- 
tody—  exceptions  under  bills  of  lading 198 


CONTENTS.  ix 


CHAPTER  V. 

Usage,  Special  Contract,  and  Legislation  Affecting  the 
Common  Carrier's  Bailment  Responsibility. 

Page 
§  356.    Three  Modes  of  Affecting  Liability 206 

367.  I.  Effect  of  Usage 206 

358-367.    11.  Effect  of  Special  Contract :  English  doctrine  peculiar 

—  American    doctrine  —  permitted    qualifications  — 
valuation,  time,  etc 207 

368.  Special  Contract  Seldom  Enlarges  Risk 216 

369-372.    Contract  How  Entered  into  :  English  and  American  rules 

compared —  inferential  assent  from  bill  of  lading,  etc,  217 

373-380.    Indirect  Mutual  Assent 221 

381.    Effect  of  Sender's  Refusal  of  Special  Terms    .  '  .     .     .  225 
382-387.    Miscellaneous  Points  :  evidence  and  burden  of  proof  — 

carriage  of  animals  —  proximate  and  remote  cause,  etc.  226 

388.    in.  Effect  of  Legislation 231 


CHAPTER  VI. 

Termination  of  the  Common  Carrier's  Bailment 
Responsibility. 

5§  389-394.    Delivery  over  to  Right  Party:  effect  of  delivery  —  the 

right  party  —  agency  —  document  of  title    ....     233 

395-398.    Various  Points:   special  directions  —  paramount  owner 

—  misdelivery  —  stoppage  in  transitu,  etc 237 

399-407.    Property  unclaimed,  refused,  etc.  —  unloading  —  notice 

and  opportunity  —  "CO    D.,"  etc: 240 

408-414.  Carrier  for  Transit  and  Bailee  after  Arrival :  personal 
delivery  dispensed  with  —  vessels,  railways,  etc.  — 
other  instances 244 

415-417.    Usage,  Special  Contract,  and  Legislation:  in  matters  of 

delivery 251 

CHAPTER  Vn. 

General  Rights  of  Common  Carriers. 

§  418.    General  Rights  for  Consideration 255 

419,420.    I.  Special  Property  in  the  Thing:  action  against  third 

persons,  agents,  etc 255 


X  CONTENTS. 

Page 
§§  421-436.  II.  Right  of  Compensation  :  parties  liable  —  allowances, 

etc 256 

437-446.    Enforcement  —  lien  and  its  incidents 268 

4:47-451.    Remedy  aside  from  lien  —  mutual  rights  of  carrier  and 

consignee 276 


CHAPTER   VIII. 

Remedies  agaixst  Common  Carriers. 

§  452.    Leading  Causes  Stated 279 

453.    I.   For  Inexcusably  Refusing  to  Receive 279 

454-479.    11.   For  Fault  in  Transportation:  form  of  action  —  party 

plaintiff  or  defendant 280 

Declaration  and  pleadings  —  proof  —  damages      .      .  296 
480-483.    III.  For  Fault  in  Final  Delivery  :  injury  —  extortionate 

charges,  etc 308 

484.    Conflict  of  Laws  in  Remedies 310 

CHAPTER   IX. 
Connecting  Carriers. 

§§  485-489.    Nature  of  this  Carriage  :  partnership  and  mutual  agency 

—  through  contracts 312 

490-495.    Principle    of     Liability  :     presumptions,    English    and 

American,    etc 317 

496-502.    Usage   and    Special   Contract :    through  receipt,  etc.  — 

general  stipulations 321 

503-508.    Miscellaneous  Points:    liability  towards  one  another  — 

commencement  and  termination  of  risk  —  recompense 

—  notice 326 

CHAPTER   X. 

Inter-State  Commerce  Legislation. 

§§509-516.    Act  of  1887  Described  :    commission  —  pooling  earnings 

—  long  and  short  haul,  etc 333 


CONTENTS.  xi 

PART   VII. 

Carriers  of  Passengers. 

CHAPTER  I. 

Matters  Prelimixary  to  the  Journey. 

Page 

§§517,518.    Topics  to  be  Considered 336 

519-522.    Who  ai"e  Passenger  Carriers:   by  land  or  water  —  re- 
sponsible transporter —  connecting  routes    .     .      .     .  33  7 
523-526.    Who    are    Passengers:     passengers,  paying  or   free  — 

trespassers 341 

527-530.    Obligation  to   Receive:    suitable   persons — reasonable 

rules 345 

531-540.    Passage  Tickets  and  Fares  :   due  recompense  —  modern 

ticket  system  —  facilities  —  restrictions —  enforcement  349 

541,  542.    Action  for  Refusing  to  Receive 360 

543.    Legislation  concerning  Fares 361 

CHAPTER   II. 

Duties  and  Rights  Incidental  to  the  Journey. 

§§544-560.    I.  Carrier's  General  Duties  :  suitable  depot  for  receiving 

—  means   and   appliances  for  transportation  —  good 

treatment  by  those  employed 363 

Duties  in  the  transportation  —  time-tables  —  changes 

and  stops 372 

561-563.    II.   Liability  for  Injuring  or  Killing:    standard  applied 

—  l^assenger's  contributory  negligence 378 

564,565.    III.  Special  Contract  and  Circumstances:  "free  pass" 

stipulations,  etc 383 

566.    IV.  General  Right  of  Ejection 385 

CHAPTER   III. 
Termination  of  the  Journey. 

§§  567-569.    How  Journey  Naturally  Ends:    opportunity  to  alight  — 

place  for  landing 389 

570.    Final  Compensation  of  Carrier 391 


xii  CONTENTS. 

CHAPTER  IV. 
Transportation  of  Baggage. 

Page 
§§571-576.   General  Principle  Applied  :  what  is  baggage  —  bailment 

responsibility 393 

577-583.    Miscellaneous  Points:  acceptance  of  things  not  baggage 

—  liability  for  hand-baggage 399 

Passenger's  duties  —  reasonable  rules  —  special  contract 

—  arrival — lien  —  suits 401 


IXDEX 405 

ADDENDA:  Latest  Cases 417 


TABLE    OF   CASES 


[The  references  are  to  sections.    Many  other  cases  are  cited  by  book  and  page  simply] 


Abbott  V.  Bradstreet  578 

Adams  v.  Clark      437,  438,  448,  457 


V.  O'Connor 

182 

Adams  Express  Co.  v.  Haynes 

476 

V.  Jackson 

345 

V.  Reagan 

367 

V.  Stettaners 

374 

V.  Wilson 

498 

Aigen  v.  Boston  &  Maine  R. 

468, 

477,  487 

495 

Alabama  R.  v.  Kidd      392,  414, 

415 

V.  Searles 

319 

V.  Thomas 

364 

Alden  v.  Pearson            350,  449, 

457 

Alderman  v.  Eastern  R. 

394 

Aldrich  v.  Boston  &  Worcester  E 

.  86 

Alexander  v.  Greene 

362 

V.  Southey 

397 

Alexandria  R.  v.  Burke 

192 

Allen  V.  Sewall                        280, 

284 

V.  Sackrider 

272 

Ailing  V.  Boston  &  Albany  R.      459, 
571,  577 
Allis  V.  Voight  275 

Alston  V.  Herring  346 

American  Co.  v.  German  169 

American  Express  Co.  v.  Green- 

halgh  396,  399,  406 

V.  Milk  393 

V.  Perkins  314 

American  Merchants'  Union  Ex- 
press Co.  V.  Wolf  413 
Ames  V.  Palmer  439 
Amos  V.  Temperley  433  a 
Anderson  v.  North-Eastei  n  R.  480 
Androscoggin  R.  v.  Auburn  Bank 

174,  175,  177 


Ansell  V.  Waterhouse  468 

Appleby  v.  Myers  89 

Arbuckle  v.  Thompson  466 

Archer  v.  Walker  50,  57 

Arendale  v.  Morgan  203 

Armour  v.  Michigan  Central  R. 

312,  383 
Arnold  v.  Illinois  Central  R.  528 
Asfar  V.  Blundell  426 

Atchison  v.  Chicago  R.  462 

Atchison  R.  v.  Roach  502 

V.  Webber  551 

Atkisson    v.    Steamboat    Castle 

Garden  425,  482 

Atlantic  Trust  Co.  v.  Nelms         143 
Atlas,  The  555 

Atwater  v.  Sawyer  253 

Atwell  V.  Miller  429 

Audenried  v.  Phil.  R.  299 

Auerbach  v.  N.  Y.  Central  R.       534 
Auld  V.  Butcher  211 

Aurentz  v.  Porter  79 

Austin  V.  Great  Western  R.  534,  537 

V.  Manchester  R.  370,  473 

V.  Miller  119,  128,  133 

Ayers  v.  Banking  Co.  143  a 

V.  South  Australian  Bank- 
ing Co.  182 


B 


Babcock  v.  Lawson 

154, 

169,  184 

Bags  of  Linseed 

440 

Bailey  v.  Cobb 

117 

V.  Colby 

85 

r.  Damon 

422 

Baird  v.  Daley 

79.  86 

Baker  v.  Arnot 

189 

XIV 


TABLE   OF   CASES 


[The  references  are  to  sections.     Many  other  cases  are  cited  by  book  and  page  simply] 


Baldwin  v.  Liverpool  Steamship 

Co.  435 

V.  London  R.  314,  338 

Ball  i\  Liney  95 

Ballon  V.  Earle  366 

Baltimore  R.  v.  Keedy  348,  477 

V.  Pumphrey         397,  455,  473, 

478,479 

Baltimore  &  Ohio  R.  v.  Blocher  536 

V.  Voiglit  5G4 

V.  Wilkens  312 

Baltimore     Steamboat     Co.     v. 

Brown  489,  498 

Baltimore  Steam  Packet  Co.  v. 

Smith  465,  571 

Bamberg  v.  South  Carolina  R.     289 
Bancroft  v.  Peters  430 

Banfield  v.  Whipple  121 

Bank  v.  Lanier  147 

V.  Poynter  168,  169 

Bank  of  Commerce  v.  Bissell       394, 
395,  398 
Bank  of  Kentucky  v.  Adams  Ex- 
press Co.    277,  344,  355,  363,  365, 

497 
Bansemer  v.  Toledo  R.  411 

Barber  v.  Hathaway  140 

V.  Meyerstein  157,  466 

Barclay  v.  Cuculla  y  Gana  335 

Barker  v.  Midland  R.  546 

V.  New  York  Central  R.       557, 
560 
Barney   v.   Oyster   Bay   Steam- 
boat Co.  529 
Barron  v.  Eldredge  309 
Bass  V.  Chicago  R.                          528 

V.  Glover  394 

Bates  V.  Stansell  97 

Batut  V.  Hartley  79,  96 

Bansemer  v.  Toledo  R.  414 

Bayliss  v.  Lintott  455,  457,  471 

Beaconsfield,  The  419 

Beale  v.  Posey  235 

Bealle  v.  Southern  Bank  153 

Bean  v.  Sturtevant  289 

Beard  i'.  Illinois  Central  R.  357 

Beardslee  v.  Richardson  30 

Beauchamp  v.  Powley  263 

Becker  v.  Lincoln  R.  570 

Beckwith  v.  Frisbie  281 

Beebe  v.  Ayres  536 

V.  Roberts  465 

Belden  v.  Perkins  184 

Belfast  R.  v.  Keys  577 

Belger  v.  Dinsmore  374 


Seller  v.  Schultz  52,  5  1 

Benje  v.  Creagh  132 

Benner  v.  Equitable  Safety  Ins. 

Co.  429 

Bennett  v.  Dutton  527 

V.  Express  Co.  343 

V.  Filyaw  280 

V.  New  York  Central  R.        535 
V.  O'Brien  66,  107 

V.  Peninsular  Co.  527 

V.  Stoddard  187 

Benoir  v.  Paquin  196 

Benson  v.  Gray  402 

Bentwick  v.  Joint  Stock  Bank      153 
Berg  V.  Atchison  R.  499 

Bermel  v.  New  York  R.  366 

Berry  v.  Gibbons  146,  154 

Bickford  v.  Metropolitan  Steam- 
ship Co.  399,  414 
Biddle  v.  Bond                     33,  95,  96 
Biebinger  v.  Continental  Bank     146 
Bigbee  v.  Coombs  119,  133 
Bigelow  V.  Heaton  440 
Bird  of  Paradise,  The    440,  443,  446 
Bissel  V.  Price  506 
Bissell  V.  New  York  Central  R.    564 
Black  V.  Bogert  168 
V.  Chicago  R.                            348 
V.  Rose  448 
V.  Wabash  R.  367 
Blackman  v.  Pierce  100 
Blackstock  v.  N.  Y.  R.           295,  329 
Blackwell  v.  O'Gorman  Co.            570 
Blackwood  v.  Brown               146,  213 
Blair  v.  Erie  R.                                565 
Blake  v.  Great  Western  R.        519  a 
V.  Kimball                      32,  79,  86 
Blakemore  v.  Bristol          51.  59,  403 
Blanchard  v.  Page      433  a,  464,  465, 

466 
Blanchet  v.  Powell's  Colliery  Co.  429 
Bland  v.  Adams  Express  Co.  334 
Blitz  V.  Union  S.  S.  Co.  367 

Bliven  v.  Hudson  River  R.  343 

Block  V.  Fitchburg  R.  488 

Blossom  V.  Dodd  371 

V.  Griffin  309 

Blower  v.  Great  Western  R.  352 

Blum  V.  The  Caddo  460 

Board  of  Education  v.  Sinton      15.1 
Boaz  V.  Central  R.  455 

Bobo  V.  Patton  32,  79 

Bodenhammer  v.  Newsom  169 

Boering  v.  Chesapeake  R.  564 

Boggs  V.  Martin  430,  441 


TABLE   OF   CASES 


XV 


[The  references  are  to  sections.     Many  other  cases  are  cited  by  book  and  page  simply] 

Bonner  v.  Marsh  463 

Boorman  v.  American  Express 

Co.  382 

Boscowitz  V.  Adams  Express  Co. 

277,  344 
Boston  &  Albany  R.  v.  Shanly 

290,  314,  340 
Boston  R.  V.  Brown  449,  481 

Boston  &  Maine  R.  v.  Brown       427 
V.  Mower  Co.  465 

Bowes,  Re  146 

Bowlin  V.  Nye  457 

Bowman  v.  Hilton  280,440 

Boyce  v.  Anderson  282 

Boylan  v.  Hot  Springs  R.  535 

Boyntoni;.  Payrow  160,  164,  191,  197 
Brabant  v.  King  79 

Bradley  v.  Cunningham  84 

Branch  v.  Wilmington  R.      319,  367, 

390 


Brandt  t\  Bowlby 

467 

Branson  v.  Heckler 

150 

Brant  v.  ISlcMahon 

43 

Brass  v.  Maitland 

290 

314 

Breen  v.  Texas  R. 

536 

560 

Brennan  v.  Fair  Haven  R. 

565 

Brent  v.  Miller 

157 

Brewster  v.  Warner 

127 

Brick  V.  Freehold  Co. 

146, 

201 

Brien  v.  Bennett 

526 

Briggs  V.  Boston  &  Lowell  R. 

438, 

439, 

446 

V.  Light-Boats 

438 

Brintnall  v.  Saratoga 

493 

Bristol  R.  V.  Collins 

489 

Bristol  &  Exeter  R.  v.  Coll 

ins 

492 

British  Columbia  Co.  v.  Nettle- 

ship 

312 

British  Ins.  Co.  v.  Gulf  R. 

367 

Brittan  v.  Barnaby 

375, 

451 

Brock  V.  Gale 

574 

Bronnenburg  v.  Charman 

30 

Brooklyn,  The  City  of 

555 

Brown  v.  Adams  Express 

Co. 

384 

V.  Camden  R. 

484 

V.  Dempsey 

97 

V.  Harris 

542 

V.  Hitchcock 

4 

V.  Hodgson 

463 

V.  Runals 

215 

V.  Warren 

158 

160 

Browne  v.  Brandt 

253 

Browning  v.  Goodrich 

500 

V.  Trans.  Co. 

350 

474 

Bruce  v.  Garden 

102 

Bruley  v.  Rose 

168 

Bryan  i'.  Baldwin 

192 

Bryan  Shoe  Co.  v.  Block 

187 

Bryant  v.  Rich 

553 

Buchanan  v.  International  Bank 

155 

200 

Buckland  v.  Adams  Express  Co. 

374 

Buffett  r.  Troy  R. 

489 

Buis  r.  Cook 

112 

Bulkley  v.  Cotton  Co. 

344 

Bullard  v.  Am.  Express  Co. 

297 

V.  Young 

457 

Bunch  V.  Great  Western  R. 

578 

Bunnell  v.  Stern 

68 

Burgess  v.  Stowe 

570 

Burk  V.  Dempster 

30 

Burke  v.  South  Eastern  R.       519  a 

Burnham  t-.  Grand  Trunk  R.  533 

,537 

Burnside  v.  Grand  Trunk  R. 

475 

Burroughs  v.  Norwich  &  Wor- 

cester R. 

493 

Burrow  v.  Fowler 

104 

Burrows  v.  Bangs 

173 

17.  Trieber 

247 

Burton's  Appeal 

154 

Burton  i'.  Ferry 

528 

Bussey  v.  Miss.  Valley  Trans. 

Co. 

281 

Butt  V.  Great  Western  R. 

473 

Buxton  V.  North-Eastern  R. 

555 

Cady  V.  McDonald  232 

Cahn  V.  Michigan  Central  R.       411, 
413,  415,  434 
Caldwell  v.  Hall  30 

Calhoun  v.  Thompson  85 

Camden  &  Amboy  R.  v.  Burke    278 
Camden  R.  v.  Baldauf  371 

V.  Hoosey  528 

Camp    V.    Hartford    Steamboat 

Co.  363,  365,  472 

Campbell  v.  Conner  419 

Campion  v.  Canadian  R.  323 

Canfield  v.  Baltimore  R.        384,  474 
Cantling  v.  Hannibal  R.  371 

Cantwell  v.  Pacific  Express  Co. 

322,  465 
Capehart  u.  Seaboard  R.  367 

Cargo  V.  Schiller  79 

Carhart  v.  Wainman  240 

Carle  r.  Bearce  43 

Carpenter  u.  Boston  &  Albany  R.     545 


XVI 


TABLE   OF  CASES 


[The  references  are  to  sections.    Many  other  cases  are  cited  by  book  and  page  simply] 


Carrico  v.  West  Virginia  R.  565 

Carrier  v.  Dorrance  119 

Carrington  v.  Ward  170,  185 

Carroll,  The  562 

Carroll  v.  Staten  Island  R.  547,  556 

Carter  v.  Graves  462 

V.  Hobbs  252 

V.  Wake  195 

Cartwright  v.   Wilmerding  159 

Casey  v.  Cavaroc  161,  168 

Cass  V.  Higenbotam  212 

Central  R.  v.  Georgia  Exchange  344 

V.  Lampley  226,  273,  284  a 

V.  MacCartney  430 

V.  Perry  520,  526,  545 

V.  Smitha  352 

Central  Trust  Co.  v.  Wabash  R.    125 

Chafee  v.  Sprague  Man.  Co.         191 

Chaffe  V.  Mississippi  R.  466 

Chamberlain  v.  Masterson  247 

V.  West  60 

Chamberlin  v.  Cobb  66,  76,  107 

Chambers  v.  Kunzman  208 

Charles  v.  Coker  203 

Chase  v.  Washburn  4 

Cheesman  v.  Exall  213 

Cheney  v.  Boston  &  Maine  R.       53G 

Chenowith  v.  Dickinson  83 

Cherry  v.  Frost  154 

Chesapeake  R.  v.  Howard  519  a 

Chevallier  v.  Straham  273,  328 

Chicago  R.  v.  Ackley  436  a 

V.  Bosworth  505 

V.  Boyce  572 

V.  Calumet  Farm  366 

V.  Dewey  545 

V.  Dickinson  474,  477 

V.  Fahey  502 

V.  Flagg  566 

V.  George  557,  559 

V.  Hale  479 

V.  Jenkins  436 

V.  Michie  525 

V.  Morris  563 

V.  Moss  384 

V.  Osborne  516 

V.  People  297 

V.  Pillsbury  552 

V.  Pullman  Car  Co.  128 

V.  Scott  411 

V.  Stanbro  480 

V.  Suffern  294 

V.  Thompson  278,  339 

V.  Williams  530,  531 

V.  Wolcott  300 


Chicago,  &c.  R.  v.  Northern  Line 

Packet  Co.  420,  497 
Chiles  V.  Garrison  40 
Choate  v.  Crowninshield  337 
Chouteau  v.  Allen  194 
Chouteaux  v.  Leech  321 
Christenson  v.  American  Ex- 
press Co.  363 
Christy  v.  Row  431 
Cincinnati  R.  v.  Skillman  536 
V.  Spratt  504 
Citizens'    Bank    v.    Nantucket 

Steamboat  Co.  289,  297,  460 

Citizens'  Nat.  Bank  v.  Hooper      168 

City  R.  V.  Chicago  R.  467 

City  Savings  Bank  v.  Hopson        196 

Claflin  V.  Boston  &  Lowell  R.      457 

V.  Meyer  80,  102 

Clapp  V.  Nelson  51 

Clare  v.  Agerter  169 

Claridge  v.  Tramway  Co.  60 

Clark  V.  Barnwell  350 

V.  Burns  231 

V.  Eighth  Avenue  R.  561 

V.  Gaylord  36 

V.  Rochester  289 

V.  St.  Louis  R.  472 

Clarke  v.  Gray  471 

V.  Needles  309,  322 

Clary  v.  Willey  230 

Claypool  V.  McAllister        284  a,  313 

Cleveland  v.  Bartram  536 

Cleveland  R.  v.  Curran  564 

V.  Walrath  519  a 

Cloyd  V.  Steiger  79 

Clute  V.  Wiggins  241 

Clyde  V.  Hubbard  489,  496 

Coal  Co.  V.  Richter  12 

Coats  V.  Chaplin  462 

Cobb  V.  Elevated  R.  566 

Coggs  V.  Bernard    5,  15,  30,  52,  186, 

261,  262,  263,  325,  335 

Coleman  v.  Lambert  463 

V.  New  York  R.  566 

V.  Shelton  168 

Collenberg,  The  Brigg  425 

Collender  v.  Dinsmore  406 

Collier  v.  Swinney  322 

V.  Valentine  329 

Collins  V.  Bennett  128 

V.  Burns  392,  410 

Colquitt  V.  Stultz  198 

Col  son  V.  Arnot  153 

Colt  V.  M'Mechen  327 

Colton  V.  Cleveland  R.  384 


TABLE   OF  CASES 


XVU 


[The  references  are  to  sections.    Many  other  cases  are  cited  by  book  and  page  simply] 


Columbus  R.  v.  Ludden  411 

Commercial  Bank  v.  Bemis  94 

Comm.  V.  Cooper  195 

Commonwealth  v.  Power        541,  540 
V.  Vermont  R.  524 

Comstock  V.  Smith  140 

Conard  v.  Atlantic  Ins.  Co.  466 

Condon  v.  Marquette  R.  505 

Congar  v.  Chicago  R.  338 

Conkey  v.  Milwaukee  R.  505 

Connecting  R.  v.  Wabash  R.         402 
Connolly  v.  Warren  572 

Constable  v.  Steamship  Co.    410,416 
Converse  v.  Boston  &  ;Maine  R.    407 
V.  Norwich  Trans.  Co.    493,  504 
192 
44 
183,  437 
462 


Conyngham's  Appeal 
Cook  V.  Holt 
Cooley  V.  Minnesota  R. 
Coombs  V.  Bristol  R. 
Cooper  V.  Berry 

V.  Ray 
Cope  V.  Dodd 
Coppin  V.  Braithwaite 
Corbett  v.  Chicago  R. 

V.  Underwood 
Cotton  V.  Atlas  Bank 
Coty  V.  Barnes 
Coughlin  V.  Gillison 
Coup  V.  Wabash  R. 
Coup&  Co.  V.  Maddick 
Coupland  v.  Housatonic  R. 
Covington  Co.  v.  Keitli 


308 
161, 


382 

171 

542 

531 

322 

156 

219 

138 

59 

286 

120 

352, 353 

300,  402 


Cox  V.  Peterson  328,  357,  482 

V.  O'Riley  79 

Coxe  V.  Heislev  330 

Cragin  v.  N.  Y.  Central  R.  353,  385 
Crawford  v.  Southern  R.  493,  496 
Creamer  v.  West  End  R.  526,  567  a 
Creed  v.  Penn.  R.  525 

Crocker  v.  New  London  R.  536 

Cromwell  v.  Stephens  231 

Cronkite  v.  Wells  304,  305 

Cross  V.  Brown  72,  79,  112,  146,  205 
Crouch  V.  London  R.  315 

Crump  V.  Mitchell  41,  53,  61 

Cullen  V.  Lord  53 

Culver  V.  Wilkinson  173 

Cummings  v.  Gann  79 

Cur  ran  v).  Olson  255 

Curtis  V.  Leavitt  148 

V.  Murphy  236 

Cushman  v.  Hayes  192 

Cutler  V.  Bonney  241 

Cutting  V.  Grand  Trunk  R.  449,  479 
Cutts  IK  Brainerd  496 


D 

Dale  V.  Hall  475 

Dansey  v.  Richardson  232,  252 

Danville  Bank  v.  Waddill  33 

D'Arc  V.  London  R.  390 

Darlingu.  Boston  &  Worcester  R.  488 
Davidson  v.  Graham  365,  371,  472 
Davies,  Ex  parte  95 

Davis,  The  438 

Davis  v.  Central  Vermont  R.         387 
V.  Garrett  349 

V.  James  462 

V.  Kansas  City  R.  528,  534 

V.  Pattison  433 

Day  V.  Ridley  465 

Dean  v.  Vacearo  478 

Dearborn  v.  Union  Nat.  Bank  172 
Dearden  v.  Townsend  536 

Delaware.  The  333,  346,  372,  374,  383 
Delaware  R.  v.  Stock  Yard  Co.  279 
Deming  v.  Railroad  477,  478 

De  :\Iott  V.  Laraway  280 

Dempsey  v.  Gardner  96 

Denny  v.  New  York  Central  R.   327, 

348 
Denton  r.  Chicago  R.  384 

Denver  R.  v.  Frame  465,  478 

Dermott  v.  Jones  89 

De    Rothschild    v.    Royal    Mail 

Steam  Packet  Co.  355 

V.  Steam  Packet  Co.  355 

Derwort  v.  Loonier  550 

Devaleourt  v.  Dillon  38 

Devereux  v.  Barclay  392,  457 

V.  Buckley  478 

De  Voin  v.  Lumber  Co.  115 

Dewart  v.  Masser  210 

Dexter  v.  Syracuse  R.  574 

Deyo  V.  New  York  Central  R.  562 
Dibble  v.  Brown  575 

T\  Morgan  416 

Dickson  v.  Chaffe  46  a 

Dietrich  v.  Penn.  R.  535 

Dillard  v.  Louisville  R.  363 

Direct  Nav.  Co.  v.  Davidson  116 
Dixon  V.  Birch  230 

V.  Chicago  R.  320,  322 

Dobbin  v.  Michigan  R.  407 

Dobbins  v.  Clark  104 

Dodge  V.  Mever  304 

Donald  v.  Suckling  184,  211 

Donnell  v.  Wyckoff  176 

Donovan  v.  Hartford  R.  526 

Doolan  v.  Midland  R.  370 


XVlll 


TABLE  OF  CASES 


[The  references  are  to  sections.    Many  other  cases  are  cited  by  book  and  page  simply] 


Doorman  v.  Jenkins  26,  30 

Dorrill  v.  Eaton  206 

Dougal  I'.  Kemble  433 

Dow  V.  Packet  Co.  474 

Downer  v.  Whittier  194 
Dows  V.   First  Nat.   Exchange 

Bank  157 

Dovle  V.  Kiser  476 

Drake  v.  White  189  a 

Draper  v.  Delaware  R.  416 

Dufolt  V.  Gorman  438 

Du  Laurans  v.  St.  Paul  R.             538 

Diiinas  V.  Hampton  127 

Duncan  v.  Brennan  146 

Dunham  t?.  Lee  117 

Dunlapr.  Steamboat  Co.  316,573,577 

Dunlop  V.  INIunroe  227 

Dunn  V.  Branner  29 

V.  Grand  Trunk  R.  525 

V.  Hannibal  R.  352 

V.  Meserve  143,  164 

Dupee  V.  Blake  218 

Durgin  v.  Am.  Express  Co.  366 

Dwight  V.  Brewster  260,  457 

Dyer  v.  Erie  R.  121 

15,  Grand  Trunk  R.  430,  449,  481 


E 

Earle  v.  Grant 
Eastman  v.  Patterson 

V.  Sanborn 
East  Tennessee  R.  v.  Hunt    436, 

V.  Rogers  494, 

V.  Whittle  285, 

Eaton  V.  Boston  &  Lowell  R. 

V.  Delaware  R. 
Eddy,  The  410,  437,  440, 

V.  Livingston 
Edwards  v.  Carr 

V.  Steamer  Cahawba 
Edwin,  The  Barque  312, 

Elcox  V.  Hill 
Elkins  V.  Boston  &  Maine  R. 


465, 

547, 
266, 


Ellet  V.  St.  Louis  R. 
Elliott  V.  Rossell 

V.  Western  R. 
Ellis    V.    Narragansett    Steam- 
ship Co. 
Ellsworth  V.  Tartt  5 

Elmore  v.  Sands  533, 

Elsee  V.  Gatward 
El  well  V.  Skiddy 
Empire  Trans.  Co.  v.  Wallace 


194 

79 
112 
483 
496 
353 
555 
525 
442 

30 
112 
355 
328 
247 
271 
467 
562 
469 
565 

550 
19  rt 
5.35 
22 
425 
327 


Engel  V.  Lumber  Co. 
English  V.  McElroy 
Erie  R.  v.  Lookwood 

V.  Wilcox 
Erwin  v.  Arthur 


91 
195 
365 
314 
132 


Eureka  Springs  R.  v.  Timmons   286 

Evans  t'.  Atlanta  R.  284 

V.  Dunbar  352 

V.  Fitchburg  R.  353 

Evansville  v.  Baum  120 

Evansville  R.  v.  Marsh  496 

Everett  v.  Saltus  463 

Evershed  v.  London  R.  299 

Express  Cases  299 

Express  Co.  v.  Caldwell  367 

Exton  V.  Central  R.  565 


F 


Fairbanks  v.  Sargent  143,  197 

Fairehild  v.  California  Stage  Co.     547 

V.  Philadelphia  R.  484 

V.  Slocum  288.  468,  486 

Fairfax  v.  N.  Y.  Central  R.  382,  573, 

574 
Parish  v.  Reigle  550,  554,  555 

Farkas  v.  Powell  117 

Farmers' &c.  Bank  t'.Champlain  415 
Farmers'  Bank  v.  Erie  R.  374 

Farmer,  Steamboat  v.  Macrow     419 

V.  McCraw  467 

Farrant  v.  Barnes  340 

Farwell  v.  Importers'  Bank  153 

Faulkner  v.  Hart  411 

V.  Hill  147 

Faust  V.  South  Carolina  R.  343 

Fay  V.  Steamer  New  World  263,  270 
Feige  ik  Michigan  R.  416 

Feinberg  v.  Delaware  R.  352 

Feital  v.  Middlesex  R.  521 

Felton  V.  Chicago  R.  551 

t'.  Hales  93 

Fenner  v.  Buffalo  412 

Fenwick  v.  Schmalz  363 

Ferguson  v.  Cappeau  471 

Ferris  t).  Union  Ferry  Co.  354 

Field  P.  Chicago  R.  363,  365 

Fifth  Ave.  Bank  v.  Ferry  Co.  154 
Figlia  Maggiore,  The  468 

Fiilebrown  r.  Grand  Trunk  R.  377 
Finn  v.  Western  R.  314,  395 

First  Nat.  Bank  v.  Boyce      151,  184 

V.  Graham  18 

V.  Kelly  135  a,  157 


T.'VBLE   OF   CASKS 


XIX 


[The  references  are  to  sections.    Many  other  cases  are  cited  by  booli  and  page  simply] 


First  Nat.  Bank  v.  Marietta  R.  573 
V.  Ocean  Nat.  Bank  7,  18,  20,  31 
V.  Root  185 
Fish  V.  Chapman  275 
Fisher  v.  Brown  211 
V.  Fisher  153,  203 
V.  Kyle  3,  118 
Fi?k  V.  New-ton  -105 
Fitch  V.  Newberry  302,  453 
Fitchburg  R.  v.  Hanna  430 
Fitzgerald  v.  Elliott  100 
Fitzsimmons  v.  Southern  Ex- 
press Co.  398 
Fletcher  v.  Harmon  199,  208 
Flint  R.  V.  Weir  270,  459 
Fluker  v.  Bullard  164 
Foltz  V.  Stevens  95 
Forbes  v.  Boston  R.  394 
Ford  V.  Parker  227 
Fordyce  i?.  McFlynn  311 
Forsythe  v.  Walker  314 
Foster  v.  Essex  Bank  18,  31 
Foulkes  V.  Metropolitan  R.  519  a, 
520,  545 
Fowler  ii.  Lock  126 
Fowles  V.  Great  W^estern  R.  499 
Fox  V.  Nott  432 
Fragano  v.  Long  463 
P>aker  v.  Reeve  135  a 
Francis  v.  Dubuque  R.  80,  411,  414 
V.  Shrader  76 
Fraser  v.  Tel.  Construction  Co.  319 
Frazier  v.  Kansas  City  R.  298 
Frederick  v.  IMarquette  R.  538 
Freeman  v.  Birch  462,  464,  465 
Free  State,  The  555 
Freiberg  i\  Steenbock  96 
French  v.  Star  Transp.  Co.  398  c 
Fridley  v.  Bowen  146 
Friedlander  v.  Texas  R.  312 
Friend  v.  Woods  329 
Frink  v.  Potter  547 
Frost  V.  Plumb  70,  118 
1'.  Shaw  145 
Fry  V.  Louisville  R.  435 
Fuller  V.  Bradley  272,  441 
V.  Naugatuck  R.  560 
Furman  v.  Chicago  R.  343,  465 


G 


Gage  V.  Tirrell  355 

Gagnon  v.  Dana  59 

Gaines  v.  Union  Trans.  Co.  376 


Galena  R.  v.  Rae  292,  295,  453 

Galveston  R.  v.  Allison  500 

Gardner  v.  New  Haven  R.  524 

V.  Smallwood  349 

Garey  v.  Meagher  289 

Garrard  v.  Moody  89 

Garrison  v.  Memphis  355 

Garton  r.  Bristol  &  Exeter  R.       434 
Gass  V.  New  York  488 

Gasway  'V.  Atlanta  R.  553 

Gay  V.  Moss  143,  164,  192 

Gee  V.  Metropolitan  R.  562 

Geismer  v.  Lake  Shore  R.  295, 296, 344 
Georgia  R.  r.  Cole  500 

German  Bank  v.  Renshaw  184 

Germania  Fire  Ins.  Co.  v.  Mem- 
phis R.  365 
Geron  v.  Geron  211 
Gibbon  v.  Pavnton  359 
Giblin  v.  McMullen  7,  31 
Gibson  i\  Culver                              405 

V.  Small  319 

V.  Sturge  429 

Gilbert  v.  Hoffman  253 

Gill  V.  Manchester  288,  488,  489,  492, 

495 

V.  Rowland  571 

Gillett  V.  Ellis  333 

Gillette  v.  Goodspeed  39.  60 

Gilson  V.  Gwinn  99,  439 

V.  Martin  146,  177 

Girard  Fire  Ins.  Co.  v.  Marr  196.  219 
Gittings  i\  Nelson  143  a 

Gleason  v.  Beers  79 

V.  Goodrich  Trans.  Co.  298,  305, 
572 
Glidden  v.  Mechanics'  Bank  193 

Glyn  V.  East  India  Dock  Co.  157 

Goddard  v.  Grand  Trunk  R.  553 

Goins  r.  Western  R.  543 

Goldsmidt  t7.  Church  Trustees      196 
Goldstein  v.  Hort  152,  189 

Goodrich  v.  Willard  99 

Goodwin  v.  Mass.  Trust  Co.  214 

Goodwyn  r.  Douglas  464 

Gordon  v.  Great  Western  R.         416 

V.  Hutchinson  276 

V.  Manchester  R.  558 

V.  West  End  R.  526 

Gott  V.  Dinsmore  376,  470 

Gottlieb  V.  Bank  154 

V.  Hartman  150 

Govett  V.  Radnidge  457 

Grace  v.  Adams  374 

Graff  V.  Bloomer  323 


XX 


TABLE   OF   CASES 


[The  references  are  to  sections.    Many  other  cases  are  cited  by  book  and  page  simply] 


Graham  v.  Pacific  R.  564 

Grand  Tower  Co.  v.  Ullman  310 

Grant  v.  Norway  312 

Grapeshot,  The  137 

Graves  v.  Hartford  Steamboat 

Co.  410 

V.  Lake  Shore  R.  366 

V.  Smith  105 

V.  Ticknor  46  a 

Gray  v.  Jackson  484 

V.  Merriam  31 

V.Missouri  River  Packet  Co.    263 

Great  Northern  R.  v.  Harrison    524 

V.  Swaffield  355,  399 

Great  Western  R.  v.  Sutton  293,  434, 

483 
Green  v.  Birchard  16 

V.  Boston  R.  367,  478 

V.  Clarke  462,  467 

Greenwood  v.  Cooper  312 

Gregory  v.  Stryker  77 

Griffen  v.  Maniee  570 

Griffith  i\  Zipperwick  31 

Grindle  v.  Eastern  Express  Co.     479 
Griswold  v.  N.  Y.  R.  524,  564 

Grosvenor    v.    New    York    Cen- 
tral R.  305,  306 
Grove  v.  Brien  433  a 
Grover  Sewing  Machine  Co.  v. 

Missouri  Pacific  R.  497 

Gulf  R.  V.  Levi  295 

V.  McGown  564 

V.  Trawick  379 

Gunsel  v.  McDonnell  183 


H 


Haas  IK  Kansas  City  R.  295 

Hackett  v.  Boston  R.  478 

Hadd  V.  U.  S.  Express  Co.  374 

Hadley  v.  Baxendale  479 

V.  Cross  126 

V.  Musselman  132 

Hagebush  v.  Ragland  49 

Hagerstown  Bank  v.  Adams  Ex- 
press Co.  425,  479 
Haigh  V.  Packet  Co.  564 
Hakes  v.  Mvrick  154 
Hale  V.  Barrett                       100,  101 

V.  New  Jersey  Steam  Nav. 

Co.  280,  328 

Hales  V.  London  R.  320,  321 

Hall  tJ.  Cheney  270,  350,  449,  471,477 

V.  Pennsylvania  Co.  472 


Hall  V.  Pike  235 

V.  Power  546 

V.  Renfro  280 

Halliday  v.  St.  Louis  R.  494 

Hallowell  v.  Blackstone  Bank      205 

Halyard  v.  Dechelman  79,  97 

Hambleton  v.  Central  Ohio  R.      153 

Hamilton  v.  State  Bank  194 

Hammond  v.  North-Eastern  R.    524 

Hancock  v.  Franklin  Ins.  Co.    196,  208 

V.  Rand  235 

Handford  v.  Palmer  112 

Hanna  v.  Holton  173 

Hannibal  R.  v.  Swift    278,  286,  311, 

459,  572 

Harlan  v.  Eastern  R.  519  a 

Harriman,  The  390 

Harrington  v.  King  39 

Harris  v.  Lombard  140 

V.  Northern  Indiana  R.  320,  353 

V.  Northern  R.  338,  352 

V.  Stevens  541,  546 

Harrison  v.  Clark  147 

V.  Roy  272,  273,  274 

Hart  V.  Chicago  R.  353 

V.  Pennsvlvania  R.         366,  385 

V.  Ten  Eyck  191 

Harter  v.  Blanchard  38 

Hartford  v.  Jackson  123 

Harvey  v.  Conn.  R.  294 

V.  Epes  116 

V.  Murray        '  128 

V.  Terre  Haute  R.  366 

Haselton  v.  Portsmouth  R.  545 

Hasse  v.  Express  Co.  406 

Hastings  v.  Pepper  320 

Hathaway  v.  Havnes  154 

Hathorn  v.  Ely    "  414,  416 

Hawkins  v.  Great  Western  R.      352 

V.  HofTman  457 

V.  Providence  &e.  R.  465 

Hayes  v.  Campbell  302 

v.  Wells  339 

Haynie  v.  Baylor  273 

Hays  V,  Kennedy  355 

V.  Miller  281 

Hazard  v.  Fiske  170 

Healey  v.  Gray  247 

Hegeman  v.  Western  R.  549 

Held  V.  Vreeland  200 

Heirn  v.  M'Caughan  557 

Heisorman  v.  Burlington  R.   434,483 

Heller  v.  Chicago  R.  353 

Henderson  v.  Williams  96 

Hengstler  v.  Flint  R.  353 


TABLE  OF  CASES 


XXI 


[The  references  are  to  sections.    Many  other  cases  are  cited  by  book  and  page  simply] 

How  V.  Kirchner  444 

Howard  v.  Macondray  443 

V.  Roeben  40 

Howe  Machine  Co.  v.  Pease  242 

Howland  v.  Greenway  401,  425 

Hoyt  V.  Allen  475 

Hubbell  V.  Blandy  '  43 

Hudson  V.  Wilkinson  208 

Hufford  V.  Grand  Rapids  R.   539,  540 
Hughes  V.  Great  Western  R.        473 

241 
577 
449 
177 
423 
406 
573 
339 
168 
413 
547 


Henry  v.  State 

168 

Hett  V.  Boston  &  Maine  R. 

343, 

397 

Hewett  v.^  Chicago  R. 

345 

Hewins  v'.  Baker 

162 

Hibernian  Ass'n  v.  McGrath 

30 

Hibler  v.  McCartney 

355, 

382 

Hick  V.  Rodocanachi 

436 

Hickok  V.  Buck 

123 

Hickox  V.  Naugatuck 

306, 

310, 

573 

Hicks  V.  Shield 

429 

Hide  V.  Trent  &  Mersey  Nav.  Co. 

359 

Higgins  V.  Cherokee  R 

524, 

525 

V.  Hannibal  R. 

525, 

562 

V.  Senior 

465 

V.  Watervliet  Turnpike  Co. 

566 

Higrnan  v.  Camody 

126 

Hildebrand  v.  Carroll 

105 

Hill  V.  Burlington  R. 

500 

V.  Leadbetter 

430, 

431 

V.  Mitchell 

438 

V.  Syracuse  R. 

535 

Hill   Manuf.    Co.   v.   Boston   & 

Lowell  R. 

489, 

498 

Hilliard  v.  Goold 

536 

Hillis  V.  Chicago  R. 

32 

Hillyard  v.  Crabtree 

79 

Hilton  i\  Adams 

237 

238, 

243 

V.  Tucker 

157 

Hinckley  v.  Pfister 

210 

Hingston  v.  Wendt 

438 

Hinsdell  v.  Weed 

430, 

433 

Hinton  v.  Dibbin 

359 

Hoadley  v.  Northern  Trans 

.  Co. 

363 

365, 

484 

Hoare  v.  Parker 

151 

Hobbs  V.  London  R. 

533, 

557, 

559 

Hobson  V.  Wool  folk 

33 

Hoeger  v.  Chicago  R. 

574 

Holder  v.  Soulby 

120 

Holladay  v.  Kennard 

334, 

347 

Holmes  v.  Bailey 

164 

V.  Doane 

559 

Holt  V.  Westcott 

431, 

432 

Homer  v.  Thwing 

70, 

115 

Hooper  v.  Wells 

363 

Hopper  V.  Burness 

426 

V.  Miller 

127 

Home  V.  Meakin 

118, 

126 

Hot  Springs  R.  v.  Trippe 

488 

Hough  V.  People's  Ins. 

Co. 

92 

Houser  v.  Houser 

196 

V.  Tully 

247 

Houston  R.  V.  Adams 

392 

V.  Harn 

321, 

475 

V.  Smith 

453 

Hulett  V.  Swift 
Humphreys  v.  Perry 

V.  Reed 
Hunsaker  v.  Sturgis 
Hunt  V.  Haskell 
Hutchings  v.  Ladd 

V.  Western  R. 
Hutchinson  v.  Guion 
Hutton  V.  Arnett 
Hyde  v.  Trent  Nav.  Co. 
Hyman  v.  Nye 


Idaho,  The  62,  396 

Illinois  Central  R.  v.  Adams     352, 353 
V.  Harris  357 

V.  Smyser  306,311 

V.  Southern  Co.  479 

Ilsley  V.  Stubbs  463 

Independence    Co.    v.    Burling- 
ton R.  402 
Indianapolis  R.  v.  Herndon  270,  392, 

446 

V.  Horst  564 

V.  Strain  352 

Industrie,  The  424 

Ingalls  V.  Bills  547 

Insurance  Co.  v.  Chase  92 

V.  Kiger  94 

V.  Railroad  Co.  487,  488 

International  R.  v.  Wentworth    380 

Isaacs  V.  Third  Avenue  R.  553 


Jackson  v.  Robinson  ,  112 

v.  Sacramento  Valley  R.  411,414 

V.  Second  Avenue  R.  553 

Jason,  The  321 

Jeanes's  Appeal  176 

Jeffersonville  R.  v.  Rogers  536 

Jeffris  V.  Fitchburg  R.  451 


XXll 


TABLE  OF  CASES 


[The  references  are  to  sections.     Many  other  cases  are  cited  by  book  and  page  simply] 

Jellett  V.  St.  Paul  R.  478 

Jencks  v.  Coleman  529 

Jenkins  v.  Bacon  30 

Jennings  v.  Grand  Trunk  R.  307 

V.  Great  Northern  R.  531,  536 

Jerome  v.  Smith  536,  537 

Job  V.  Job  26 

Johnson  v.  Campbell  92 

V.  Chadbourn  Co.  231,241 

17.  Concord  R.  535 

V.  Gulf  Co.  419 

V.  Midland  R.  297 

V.  Pensacola  R.  293 

V.  Reynolds  235 

V.  Stear  184 

V.  Stone  573 

V.  Strader  457 

V.  Tennessee  R.  348 

V.  Willey  117 
Jones  V.  Morgan                  79,  90,  125 

V.  Pitcher  471 

Jordan  v.  Fall  River  R.  573 

V.  Hazard  473 

Joslyn  V.  Grand  Trunk  R.  393 

Joy  V.  Winnisimmet  Co.  545 
Judson  t;.  Western  R.     306,371,504 


K 


Kansas  City  v.  Lilley  305 

Kansas  City  R.  v.  Morrison  572 

Kansas  R.  v.  Fitzsimmons  287 

Kansas  Pacific  R.  v.  Nichols        289 
V.  Reynolds  381,  385 

Kay  V.  Wheeler  331,  355 

Keeley  v.  Boston  &  Maine  R.         535 
Keenan  v.  Southworth  226 

Keith  V.  Pinkham  550 

Kellogg  V.  Sweeney  237 

Kelly  V.  Patchell  95 

Kelton  V.  Taylor  81 

Kendall  v.  London  R.  352 

Kennard  v.  Burton  555 

Kentucky  Bridge  Co.  v.  Louis- 
ville R.  279 
Kentucky  Central  R.  v.  Thomas  525 
Kentucky  Co.  v.  Ohio  R.  436 
Keokuk. 'The  306 
Keokuk  Packet  Co.  v.  True  560 
Kiff  V.  Old  Colony  R.  343 
Kimball,  The  443,  444 
Kimball  v.  Hildreth  169 
V.  Rutland  R.  278,  285 
Kinchelo  v.  Priest  17 


King  V.  Bates 

37,  41 

V.  Green 

148 

V.  Richards 

439 

V.  Shepherd 

355 

Kinney  v.  Central  R. 

564 

Kinnick  v.  Chicago  R. 

311,321, 

345, 
352 

Kinsley  t\  Lake  Shore  R.      279 

578 

Kirchner  v.  Venus 

443 

Kirkland  v.  Dinsmore 

363 

Kirkpatrick  v.  Kansas 

City  R. 

463 

Kirkstall   Brewery  Co. 

V.  Fur- 

ness  R. 

475 

Kirst  V.  Milwaukee  R. 

474 

Kittera  v.  Estate 

197 

Klauber    v.    American 

Express 

Co. 

338 

Knight  V.  Portland  R. 

489.  519  a 

V.  Providence  R. 

493,  506, 

508 

V.  St.  Louis  R. 

455 

Knowles  v.  Dabney 

390 

Knox  r.  Turner 

215 

Koehne  v.  New  York  R 

561 

Kohler  t\  Hayes 

3 

Kopitoff  V.  Wilson 

319, 

331 

Kremer  v.  Southern  Express  Co. 

413 

Kyle  V.  Laurens  R. 

494 

Ladd  V.  New  Bedford  R. 

547 

Lady  Pike,  The 

355 

Lafaye  v.  Harris 

453 

Laing  v.  Colder 

555 

Lake  Shore  R.  v.  Bennett . 

295, 

456. 

472 
540 

Lake  Shore  v.  Pierce 

Lanata  v.  Ship  Henry  Grinnell 

449 

Lane  v.  Boston  &  Albany  R. 

47.") 

V.  Cameron 

53 

115 

V.  Chadwick 

457 

V.  Old  Colony  R. 

441 

442 

Lang  V.  Penn.  R. 

387 

Latham  v.  Rutley 

472 

Laughlin  t\  Chicago  R. 

502 

Laveroni  v.  Drury 

331 

Law  V.  Hatcher 

461 

462 

Lawrence  v.  Maxwell      176 

210 

216 

V.  McCalmont 

189  a 

V.  Minturn 

463 

V.  Winona  R. 

493, 

505 

Lawson  v.  Worms 

420 

Lazier  v.  Nevin 

196 

Learned  Co.  v.  Fowler 

89, 

130 

TABLE   OF   CASES 


XXIU 


[The  references  are  to  sections.    Many  other  cases  are  cited  by  book  and  page  simply] 


LeaA-y  v.  Kinsella  99 

Le  Barron  v.  East  Boston  Ferry 

Co.  549 

Lebeau  v.  Steam  Nav.  Co.  342 

Le  Blanche  v.  London  R.    533, 557, 559 
Lecky  v.  McDermott  446 

Le  Conteur  i\  London  R.  317 

Lee  V.  Baldwin  189  a 

Leech  v.  Baldwin  346,  430 

Leggott  V.  Great  Northern  R.       563 
Lehman  v.  Skelton  101 

Lemon  v.  Chanslor  519 

Lemont  v.  Lord  321 

Lenz  V.  Harrison  138 

Leo  V.  St.  Paul  R.  502 

Leonard  v.  Dunton  97 

i\  Winslow  438 

Lethbridge  v.  Phillips  16 

Levi  V.  Lynn,  &c.  Horse  R.   278,  284 
Le\'y  V.  Louisville  R.  500 

Lewis  V.  M'Kee  433 

V.  Mott  184 

V.  Smith  280,  354 

V.  Western  R.  404 

Libby  v.  Ingalls  392,  395,  406 

Liberty  Bank  v.  Campbell  147 

Lillis  V.  St.  Louis  R.  535 

Lincoln  v.  Gay  69,  82 

Lipford  V.  Charlotte  R.  390 

Little  V.  Boston  &  Main  R.   315,  339, 

350 

V.  Dusenberry  521 

Little  Miami  R.  v.  Wetmore  553 

Little  Rock  R.  v.  Dean  536 

V.  Harper  384 

V.  Miles  524 

Liver  Alkali  Co.  v.  Johnson  274,  280 

Liverpool  Steam  Co.  v.  Phenix 

Co.  361 

Lock  Co.  V.  Railroad  493,  495 

Loew  V.  Austin  198 

Logan  V.  Mathews  118 

London  R.  v.  Bartlett  395 

Long  V.  Mobile  R.    437,  438,  448,  457 

Lorent  v.  Kentring  423 

Lough  V.  Outerbridge  293,  300 

Loughborough  r.  McNevin  210 

Louisville  R.  v.  Bigger  352 

V.  Brownlee  374 

V.  Gilmer  411 

V.  Hedger  385 

V.  Kelly  562 

V.  Queen  Coal  Co.  295 

V.  Snider  548 

V.  Wilson  421 


Louisville  v.  Thompson  524 

Lovejoy  v.  Dolan  555 

Loveland  v.  Burke  403,  415 

Lowe  V.  Moss  322,  482 

Lowenburg  v.  Jones  496,  507 

Lucas  V.  Milwaukee  R.  525 

V.  Trumbull  115,  119 

Lusk  V.  Belote  235 

Lvgo  V.  Newbold  525 

Lyons  v.  Hill  406 


M 


Mackill  V.  Wright  346 

Macomber  i\  Parker  143  a 

Macrow  v.  Great  Western  R.  572,575 
Madan  v.  Sherard  374,  375 

IMagdeburg  v.  Nihlein  44 

Magellan  Pirates,  The  336 

Maggie  Hammond,  The  320,  321 

Magnin  v.  Dinsmore  366 

Maignan  r.  New  Orleans  R.  411 

Mairs  v.  Taylor  189 

Malone  v.  Robinson  115 

Mann  v.  Birchard  363,  472 

V.  White  River  Log  Co.  281 

Manton  v.  Robinson  176 

Maples  V.  New  York  R.  536,  537 
Marine  Bank  v.  Fiske  457 

Mariner  i;.  Smith  11,20 

Markham  v.  Jandon  196 

Marner  v.  Banks  117 

Maroney  v.  Old  Colony  R.  534 

;Marquette  R.  v.  Kirkwood  502 

Marseilles  Co.  v.  Morgan  104 

Marsh  v.  Union  Pacific  R.  438,  449 
Marshall  v.  American  Express 

Co.  413 

V.  Matson  541 

Martin  v.  Great  Indian  R.  459 

Maslin  v.  Baltimore  R.  478,  524 

Mason  v.  Lickbarrow  423 

Mass.    Loan    &    Trust    Co.    v. 

Fitchburg  R.  466, 479,  480 

Mather  v.  American  Express  Co.  479 
Matthews  v.  Warner  135  a 

Mauck  V.  Trust  Co.  173 

Mavlng  V.  Todd  359 

INIay  V.  Hanson  311 

V.  Sharp  173,  217 

Ma  vail  V.  Boston  &  Maine  R.  344 
Maybin  v.  South  Carolina  277.  310 
Mayo  V.  Avery  210 

V.  Boston  &  Maine  R.  562 


XXIV 


TABLE  OF  CASES 


[The  references  are  to  sections.    Many  other  cases  are  cited  by  book  and  page  simply] 


McAildrew  v.  Wliitlock  410 

McArthur  v.  Sears  330 

McCalla  v.  Clark  180,  210 

McCartliv  v.  Wolfe  79 

McCarty'i;.  New  York  &  Erie  R.   41 1 
McCauley  v.  Davidson  471 

McCawley  r.  Furness  R.  564 

McClary  v.  Sioux  City  R.  558 

McClure  v.  Philadelphia  R.  53G 

MeConilie  v.  New  York  R.  89 

McCormick  v.  Penn.  Central  R.    579 
McCotter  v.  Hooker  474 

McCoy  V.  K.  &  D.  M.  R.   .  352 

McCranie  v.  Wood  334 

McCrea  v.  Yule  174 

McCulloch  V.  McDonald  398  a 

McCullouffh  V.  Hellweg  450 

McDaniels  v.  Manuf.  Co.  181 

V.  Robinson  240 

McDonald  v.  Chicago  R.  545 

V.  Snelling  120 

V.  Western  R.  505 

McDuffee  v.  Portland,  &c.  R.    293,  299 
McEacheran  v.  Michigan  R.  499 

McElroy  v.  Railroad  535,  548 

McEntee  v.  New  Jersey  Steam- 
boat Co.  397 
McEwen  v.  Jeflfersonville  R.         395 
McGill  V.  Monette                      86,  127 

V.  Rowand  453,  572,  574 

M'Kean  v.  M'lvor  392 

McKinlay  v.  Morrish  355 

McKinley  v.  Chicago  R.  553 

IMcLean  v.  Burbank  520 

ty.  Fleming  443 

M'Lean  v.  Walker  211 

McMahnn  v.  Field  79,  80,  84 

V.  Sloan  53,  01 

McManus  v.  Lancashire  R.  359 

McMasters  v.  Penn.  R.  357,  415 

McMillan  v.  Michigan  R.  411 

M'Neill  V.  Brooks  112 

McNeil  V.  Tenth  Nat.  Bank  195 

McPadden  v.  New  York  Cen- 
tral R.  547, 561 
McQueen's  Appeal  198 
Mead  v.  Southwestern  R.  464 
Means  v.  Bank  of  Randall  147 
Medawar  i;.  Grand  Hotel  Co.  234,  247 
Medfield  v.  Boston,  &c.  R.  364 
Meier  v.  Pennsylvania  R.  549 
Memphis  R.  v.  Holloway  367,  502 
Merchants  Bank  v.  Demere  146 

V.  Livingston  154 

V.  Thompson  197 


iMerchants  Co.  v.  Furthmann        376 
Mercliants  Desp.  Trans.  Co.  v. 

Bolles  315,  339,  500,  505 

Merian  v.  Funck  433 

Merriam  v.  Hartford  R.  307 

Merrick  v.  Webster  319 

Merrill  v.  Express  Co.  379,  413 

V.  Grinnell  573 

Merritt  v.  Claghorn  241 

V.  Earle  327,  329 

r.  Old  Colony  R.  311 

Mershon  v.  Hobensack  330 

Merwin  v.  Butler  278,  413 

Messenger  v.  Penn.  R.  293 

Metcalf  V.  Hess  242 

Metzger  v.  Franklin  Bank  43 

Miami  Co.  v.  Port  Royal  R.   445,  479 

Michaels  v.  New  York  R.      327,  348, 

350,  504 

Michigan  Central  R.  v.  Carrow     16, 

263,  270,  573,  577 

V.  Hale  363 

Michigan  Southern  R.  v.  Shurtz  309 

Midland  R.  v.  Bromley  350 

Miller  v.  Marston  99 

V.  Peeples  238 

V.  Pendleton  354 

V.  Steam  Nav.  Co.  328 

Mills  V.  Michigan  Central  R.        505 

Milwaukee  R.  v.  Smith  484 

Minder  v.  Pacific  R.  577 

Miner  v.  Norwich  R.  433  a 

Minna,  The  91 

Minor  v.  Staples  238 

Minturn  v.  Warren  Ins.  Co.  428 

Mississippi  R.  v.  Kennedy    571,  572 

Missouri  Co.  Re  361 

Missouri  Pacific  R.  v.  McFadden   157 

]Missouri  R.  v.  Cornwall  364 

r.  Neville  335 

Mitcliell  V.  Georgia  R.  478 

f.  Lancashire  R.  411,416 

Mobile  R.  i\  Copeland  494 

V.  Jarey  351 

V.  Williams  466 

]\Tohawk,  The  328,  355 

Mohler.  The  355 

Montgomery  R.  v.  Kolb  307 

V.  Moore  350,  493 

Mooers  v.  Larry  114 

]\Ioore  V.  Citizens  Bank  154 

V.  Metropolitan  R.  553 

V.  Michigan  R.  328 

V.  Shoridine  460 

Moors  V.  Kidder  151 


TABLE   OF   CASES 


XXV 


[The  references  are  to  sections.    Many  other  cases  are  cited  by  book  and  page  simply] 


Moors  V.  Washburn 

V.  Wyman  168, 

Moran U.Portland  Steam  Packet 

Co. 
Morehead  v.  Brown 
Morewood  v.  Pollok  328, 

Morgan  v.  Dibble 

V.  Dod 

V.  North  Am.  Ins.  Co. 

V.  Ravey 
Morley  v.  Eastern  Express  Co. 
Morris  Canal  Co.  v.  Lewis 
Morris  R.  v.  Railroad  Co. 
Morrison  v.  Davis  327,  348, 

V.  Phillips  Co. 
Morse  v.  Brainerd 

V.  Crawford 

V.  Slue  359, 

Mors  Le  Blanch  v.  Wilson 
Mortimer  v.  Ragsdale 
Moses  V.  Boston  &  Maine  R. 
Moss  V.  Bettis  273, 

Moulton  V.  Phillips 
Mowers  v.  Fethers  234,  247, 

Muddle  V.  Stride 
Muehlhausen  v.  St.  Louis  R. 
Mulligan  v.  Illinois  Central  R. 


146 
169 

475 
83 
355 
410 
138 
425 
240 
474 
174 
489 
355 
374 
498 
130 
469 
440 
94 
411 
280 
81 
252 
350 
524 
374, 
494 
298 
278 
540 
551 
457 
478 
,498 
365, 
385 
496 


Munster  v.  South-Eastern  R. 
IMurch  V.  Concord  R. 
IMurdock  v.  Boston  &  Albany  R 
Murphy  v.  Union  R. 
^Murray  v.  Warner 
Murrell  v.  Dixey 
Muschamp  v.  Lancaster  R.    492 
Mynard  v.  Syracuse  R.         352, 

Myrick  v.  Michigan  Central  R. 


N 


Najac  V.  Boston  &  Lowell  R.        496 

Nash  V.  Mosher  85,  117 

Nashville  R.  v.  Estes  334,  343 

V.  Messino  526,  555,  565 

V.  Sprayberry  519  a 

Nathan  v.  Shivers  446 

National  Bank  v.  Graham  18,  79 

V.  Missouri  R.  157 

Neal  V.  Wilmington  R.  411.  414 

Negus  V.  Simpson  130 

Neish  V.  Craham  443 

Nell  is  V.  New  York  R.  536 

Nelson  v.  Atlantic  R.  562 


Nettles  V.  Railroad  Co.  351 

Nevin   v.   Pullman   Palace   Car 

Co.  279,  527 

Newall  V.  Royal  Shipping  Co.      357 
New  Brunswick  Steamboat  Co. 

V.  Tiers  329 

Newell  V.  Smith  287,  478,  497 

New    England    Express    Co.    v. 

Maine  Central  R.  299 

New  England  Trust  Co.  v.  Belt- 
ing Co.  200,  201 
Newhall  v.  Central  Pacific  R.  398  c 
V.  Paige  17,  68 
New  Haven  Co.  v.  Campbell  441 
New  Jersey  R.tJ.  Pennsylvania  R.  286, 

315 

New  Jersey  Steam  Nav.  Co.  v. 

Merchants'  Bank      362,  371,  453, 

460,  465 

New  Orleans  v.  Burke  551,  552 

New  Orleans  R.  v.  Faler  365 

V.  Jope  553 

Newsom  v.  Davis  202 

Newton  v.  Fay  162 

New  World,  Steamboat  v.  King 

524,  533,  556,  561 
New  York  R.  v.  Estill  478 

V.  Winter  536 

New  York  Central  R.  v.  Fraloff 

574,  575,  577 
V.  Standard  Oil  Co.  426 

Nichols  V.  Smith  287,  310 

Nicholson  v.  Willan  359,  370 

Nicolls  1'.  Bastard  467 

Nitro-Glycerine  Case  290,  314,  315, 
339,  340,  378 
182 
244 
367 
577 
561 
361 
534 


Noles  V.  Marable 
Norcross  v.  Norcross 
Norfolk  R.  V.  Harmon 

V.  Irvine 

t\  Tanner 
Norman  v.  Binnington 

V.  Southern  R. 
North  V.  Transportation  Co.         508 
Northern  Belle,  Tlie  319,  331 

Northern  R.  v.  Fitchburg  R.  277 

Northern  Pacific  R.  v.  Adams      564 
Northern  Securities  Co.  515 

Norway  Plains  Co.  v.  Boston  & 

Maine  R.  414 

Norwich  Transportation  Co.  v. 

Flint  551 

Notara  v.  Henderson  321 

Noyes  v.  Rutland  R.  489 

Nudd  V.  Montayne  62 


XXVI 


TABLE   OF   CASES 


[The  references  are  to  sections.    Many  other  cases  are  cited  by  book  and  page  simply] 


Nugent  V.  Smith   2G0,  282,  289,  327, 

348,  350,  352 

Nutting  V.  Conn.  River  R.  493 

Nye  V.  Daniels  4 


O 


O'Bannon  v.  Southern  Express 

Co.  305 

O'Brien  v.  Boston  &  Worcester  R.    566 
O'Bryan  v.  Kinney  374 

Ocean  S.  S.  Co.  v.  McAlpin  474 

Ogden  V.  Latlirop  193 

Ohio  R.  V.  Nickless  564 

V.  Yobe  343 

Ohrloff  V.  Briscall  355,  384 

536 
242 
172 
505 
284 
202 


Oil  Creek  R.  v.  Clark 
Olson  t'.  Crossman 
Onderkirk  r.  Central  Bank 
O'Neil  V.  New  York  Central  R 
O'Neill  V.  Keokuk  R. 

i\  Whigham 
Oppenheim  v.  White  Lion  Hotel 

Co.  247 

Orange  Bank  v.  Brown  455,  456 

Ortt  V.  Minneapolis  R.  496 

Oswego  Bank  v.  Doyle  94 

Oniniit  -v.  Henshaw  572,  574 

Oxlade  v.  North-Eastern  R.         297 


Pacific  Co.  V.  Wallace  80 

Pacific  Express  Co.  v.  Foley  367 

Packard  v.  Earle  413 

V.  (retman  457 

V.  Taylor  345.  495 

Packet  Co.  v.  Clough     526,  545,  565 

Padgitt  V.  Moll  565 

Palmer,  Re  299 

Palmer  v.  Railroad  542 

Palmtag  v.  Doutrick  170 

Pandorf  v.  Hamilton  355 

Parker  v.  Flagg  328 

V.  Great  Western  R.  278 

V.  Lombard  94 

V.  Marquis  CD 

V.  Milwaukee  R.  41 1 

Parmelee  v.  Fischer  478.  572 

V.  Lowitz  276 

V.  McNulty  278 

Parshall  v.  Eggert  161 

Parsons  v.  Hardy  423 

V.  Overmire  158,  165 


Partee  v.  Bedford  140 

Passenger  R.  i;.  Young  553 

Patten  t'.  Baggs  96 

Pattison  v.  Syracuse  Nat.  Bank    36 
Patton  V.  Magrath  458 

Paynter  i;.  James  443,  444,  450 

Pearson  v.  Duane  531,  551 


Pease  v.  Delaware  R. 

Peck  V.  New  York  Central  R. 

V.  Weeks 
Peebles  v.  Farrar 
Peek  V.  North  Staflfordshire  R. 


566 

530 

471 

95 

359, 

370 

320,  478 

436  a 

412 


Peet  V.  Chicago  R. 

Peik  V.  Chicago  R. 

Pelton  V.  Rensselaer 

Pemberton  Co.  v.  New  York  Cen- 
tral R.  365 

Peniston  v.  Chicago  R.  550 

Pennewill  v.  Cullen  79,  274 

Pennsylvania  Co.  v.  Georgia  R.    437 
V.  Holderman  463 

V.  Miller  571 


Roy 


279,  519  ffl 


Pennsylvania  R.  v.  Butler  564 

v"!  Fries  328,  347 

V.  Kilgore  560 

V.  Midvale  Street  Co.  436 

V.  Oil  Works  437 

V.  Spicker  534 

Penny  v.  Porter  473 

People  V.  Boston.  &c.  R.  294 

People's  Bank  v.  Clayton  153 

V.  Etting  162 

Peoria  Bank  v.  Northern  R.  394 

Pereire,  The  355 

Perkins  ti.  Chicago  R.  525 

V.  Portland  R.         489,  493,  497 

Perley  ik  New  York  Central  R.     577 

Perrv  v.  Thompson  375 

Peters  v.  Rylands  287,  521 

V.  Scioto  R.  434 

Petersen  v.  Case  508 

Petrie  v.  Penn.  R.  540 

Petty  V.  Overall  172 

Pharr  v.  Collins  438 

Phelps  V.  Illinois  Central  R.        286, 

295,  343 


V.  London  R. 

573 

V.  People 
Philadelphia  R.  v.  Derby 
'V.  Harper 
V.  Hoefiich 

16,72 
120 
334 
534 

V.  Rice 

542 

Philles  V.  Sanford 

345 

TABLE   OF   CASES 


XXVll 


[The  references  are  to  sections.    Many  other  cases  are  cited  by  book  and  page  simply] 


Phillips  V.  Brigham  321,  345 

V.  Earle  315 

i\  Edwards  383 

Pickford  v.  Grand  Junction  R.    292, 

294,  453 

Pigot  V.  Cable V  192,  210 

Pike  V.  Chicago,  &c.  R.  411 

Pindell  v.  Grooms  145 

Pinkerton  v.  Railroad  162 

V.  Woodward    231,  232,  241,  242 

Pinney  v.  Wells  443 

Pittsburgh  R.  r.  Hannon  285 

V.  Hinds  552,  555 

V.  Ilollowell  295 

V.  McClurg  562 

V.  Morton  297,  453 

V.  Pillow  552 

V.  Unzum  558,  560 

V.  Williams  547 

Plaisted  v.  Boston  Steam  Nav. 

Co.  3.30 

Planz  V.  Boston  R.  524 

Plott  t'.  Chicago  R.  567  a 

Pollard  V.  Vinton  312,  383 

Pomeroy  v.  Donaldson  280 

Pontifex  v.  Midland  R.  457 

Porcher  v.  Northeastern  R.  347 

Porter  v.  Hildebrand  572 

V.  Rose  449 

V.  Southern  Express  Co.        367 

Portland  Bank  v.  Stubbs  423 

Portsmouth,  The  333,  346 

Post  V.  Tradesmen's  Bank  213 

Potter  V.  Lansing  466,  467 

t'.  Thompson  192 

Potts  V.  N.  Y.  R.  437 

Powder  Co.  v.  Burkhardt  77 

Powell  V.  Mills      278.  280,  327.  332 

V.  Pennsylvania  R.        353,  363 

V.  Pittsburg  R.  535 

V.  Robinson  83 

Powers  r.  Boston  &  ISLaine  R.       525 

Pozzi  t\  Shipton  456,  471 

Pratt  V.  Ogdensburg  R.  352,  385 

V.  Railway  Co.  504 

Preston  v.  Prather    7,  11,  17,  23.  31. 

76.  86 
Price  V.  Hartshorn  333 

V.  Powell  462.  466 

Priestly  v.  Fernie  469 

Prince  v.  Alabama  Fair         107,  113 
Proctor  v.  Eastern  R.  277 

V.  Whitcomb  184 

Propeller  Niagara  v.  Cordes        319. 

321 


Proyidenee  Thread  Co.  v.  Aldrich  147 
Pullman  Palace  Car  v.  Martin  279 
Pullman  Palace  Car  Co.  v.  Reed 

534, 537 

V.  Smitli  231,  279 

Pusey  V.  Webb  82 

Putnam  v.  Broadway  R.       529,  551, 

552 


Q 


Queen  v.  Rymer      231.  234,  252,  253 
Quimby  v.  Boston  &  Maine  R.      564 


R 


Radigan  v.  Johnson  183 

Railroad    Co.    v.    Androscoggin 

Mills  500 

V.  Aspell  562,  569 

i\  Barron  520,  563 

V.  Berry  493 

i\  Harris  519  a 

V.  Lockwood  363,  304,  381,  385, 

564 

t:.  Mamif.  Co.  411,494,505 

V.  O'Donnell  343 

V.  Pratt  288,  338.  352,  385,  489, 

493 

V.  Reeyes  327,  348,  368 

V.  Valleley  551 

Railway  Co.  v.  McCarthy  489 

V.  Stevens  565 

V.  Whitton  563 

Railway  v.  Canal  Traffic  Act         543 

Raisler  v.  Oliver  227 

Ramsden  v.  Boston  &  Albany  R.   570 

Rankin  v.  Fidelity  Ins.  Co.  "^  181 

V.  Memphis,  &c.  Packet  Co. 

399,  446 
Raphael  i\  Pickford  471 

Rapp  V.  Palmer  446 

Rathbone  v.  N.  Y.  Central  R.        378 
Rathbun  v.  Steamboat  Co.  407 

Rawson  v.  Holland  505 

Ray  V.  Tubbs  112,  115 

Readhead  v.  Midland  R.        547,  561 
Reamer  v.  Davis  94,  98 

Reaves  v.  Waterman  330 

Reed  v.  Richardson  415 

V.  U.  S.  Exp.  Co.  365 

Reeves  v.  Plough  173,  196,  217 

Reid  V.  Colorado  516 


XXVIU 


TABLE   OF  CASES 


[The  references  are  to  sections.    Many  other  cases  are  cited  by  book  and  page  simply] 


Reilly  v.  Rand  107 

Reinstein  v.  Watts  84 

Reno  V.  Hogan  365 

Rice  V.  Benedict  196,  197 

V.  Boston  &  Worcester  R.     411 

t;.  Hart  411,505 

V.  Kansas  Pacific  R.  363,  367 

Rich  V.  Lambert  357 

Richardson  v.  Goddard  391,  410 

V.  Great  Eastern  R.  548 

V.  Ins.  Co.  174 

V.  North  Eastern  R.  353 

V.  Rich                      434,  449,  457 

V.  Rowntree  533 

Richmond,  The  415 

Richmond  R.  v.  Benson  397,  481 

Riley  v.  Home  325 

Ringgokl  V.  Haven  350,  478 

Ripley  v.  New  Jersey  R.  534 

Ritchie  v.  Atkinson  430 

Rixford  v.  Smith  353 

Roberts  v.  Chittenden  350,  474 

V.  Yarboro  95,  97,  102 

Robertson  v.  Kennedy  276 

Robins  v.  Gray  256 

Robinson  v.  Baker  439 

V.  Larrabee  100 

V.  Rockland  R.  566 

Rockwell  V.  Proctor  244,  245 

Rodocanachi  v.  Elliott  355 

Rogers  v.  Batchelor  147 

V.  Lambert  95 

V.  Stophel  74,  79 

V.  Weir                        96,  100,  102 

V.  Wlieeler  504 

Rohrle  v.  Stidzer  140,  199 

Rome  R.  v.  Sullivan  494 

Rommel  v.  Schambacher  255 

Rooth  r.  Wilson  30 

Roots  V.  Mason  Co.  208 

Rose  V.  Des  Moines  Valley  R.       565 

Ross  V.  Clark  61,  130 

V.  Hill  36 

V.  Troy  &  Boston  R.  338 

Rowland  v.  Jones  112,  119 

V.  New  York  R.  421 

Rueker  v.  Missouri  Pacific  R.      524, 

525 

Rush  forth  v.  Hadfield  415 

Russell  V.  Koohler  79,  102 

V.  Livingston  398 

V.  Niemann  334 

V.  Pittsburgh  R.  565 

Ryman  v.  Gerlach  154 


Safe  Deposit  Co.  v.  Pollock  74,  79 
Sager  v.  Portsmouth  R.  363,  365 
St.  Lawrence,  Steamer  444 

St.  Losky  V.  Davidson  189  a 

St.  Louis  R.  V.  Earned  394 

V.  Montgomery  309 

V.  Neel  488 

St.  Louis  &  Alton  R.  v.  South  536 
St.  Paul  R.  V.  Minneapolis  R.  286, 487 
Samms  v.  Stewart  271 

Sample  Co.  v.  Detwiler  173 

Sandeman  v.  Scurr  284  a,  469 

Sanders  v.  Vanzeller  433 

Sanderson  v.  Lamberton  465 

Sanford  v.  Housatonic  R.  46 1, 462, 465 
Sarah,  The  Schooner  345,  349 

Sargent  v.  Morris  466 

Satterlee  v.  Groat  271,  272 

Savannah  R.  v.  Bonaud  558 

Sawyer  v.  Carse  227 

V.  Dulany  554 

Sayward  v.  Stevens  423,  424,425,446 
Scaife  v.  Farrant  276,  361 

Schermer  v.  Neurath  30 

Schmidt  v.  Chicago  R.  309,  319 

Schneider  v.  Evans  438,  493,  507 
School  District  v.  Boston  455 

Schopman  v.  Boston  &  Worces- 
ter R.  521 
Schwerin  v.  McKie                      74,  79 
Schwinger  v.  Raymond  482 
Scott  V.  Allegheny  R.  348 
■y.  Boston,  &c.  Steamship  Co.    478 
V.  Crews  172 
V.  Erie                                        483 
V.    Nat.    Bank   of    Chester 

Valley  31 

V.  Reid  145,  177 

Searle  v.  Laverick  25,  81 

Sears  v.  Eastern  R.        533,  557,  559 

V.  Wills  440 

Seaver  v.  Bradley  570 

Second  Nat.  Bank  v.  Sproat  174 

Selby  V.  Wilmington  R.  352 

Self  V.  Dunn  280 

Sewall  V.  Allen  289 

V.  Water  Power  Co.  154 

Shaw  V.  Kaler  39,  91 

V.  Merchants  Bank  157 

V.  Spencer  154 

V.  Wilshire  169 

Sheffield  V.  London  Bank  153 

Sheldon  v.  Robinson  269 


TABLE   OF   CASES 


XXIX 


[The  references  are  to  sections.     Many  other  cases  are  cited  by  book  and  page  simply] 

V.  Southern  Express  Co.        217 
Shelton  v.  French  184 

Shenk  v.  Phil.  Steam  Propeller 


Co. 


392 
432 
411 

460,  466 

553 

538 

399,478,493 

430,  461 

30 

242 


Shepard  v.  De  Bernales 
Shepherd  v.  Bristol  R. 

V.  Harrison 
Sherley  v.  Billings 
Sherman  v.  Chicago  R. 
V.  Hudson  River  R. 
Shields  v.  Davis 
Shiells  V.  Blackburne 
Shoecraft  v.  Bailey 
Shoemaker  v.  Kingsbury  287 

Shrewsbury  Institution's  Appeal   146 
Shriver  v.  Sioux  City  R.      314,  342, 
364,  474 
Shultz  V.  Wall  247 

Sibley  v.  Aldrich  240 

Simmons  v.  New  Bedford  Steam- 
boat Co.  547,  555,  556 
Simpson  v.  Wrenn  62 
Sims  V.  Bond                                    465 
Sinison  v.  London  Omnibus  Co.    547 
Siner  v.  Great  Western  R.            569 
Singer  Man.  Co.  v.  Clark                150 
Siordet  v.  Hall                                  280 
Slater  v.  South  Carolina  R.          327 
Small  V.  Robinson               90,  90,  150 
Smiley  v.  Allen                            45,  62 
Smith  V.  Am.  Express  Co.             366 
V.  Atkins                                 143  a 
V.  Bailey                                    122 
V.  Beattie                                   140 
V.  Boston  &  Maine  R.             575 
V.  Cook                                 74,  79 
V.  Findlev                                  435 
V.  First  Nat.  Bank                    31 
V.  Foran                            420,  503 
V.  Great  Eastern  R.                545 
V.  Library  Board                  36,  57 
V.  Meegaii                              25,  89 
V.  Michigan  R.                         353 
V.  Nashua  R.                              399 
V.  New  Haven  &  Co.  R.  289,  352 
V.  New  York  Central  R.         502 
V.  Savin                                      153 


V.  Seward 
V.  Strout 
V.  Western  R. 
Smithurst  v.  Edmunds 


280,  455 

203 

348 

135  a,  143  n 


Smurthwaite  v.  Wilkins  433 

Sneesby  ii.  Lancaster  R.  353 

Snider  v.  Adams  Express  Co.  365 

Snow  V.  Fitchburg  R.  545 


South  Alabama  R.  v.  Henl 

ein 

366 

•V.  Wood 

463 

,474 

South  Carolina  R.  v.  Nix 

563 

Southern  Express  Co.  v.  Dickson 

392 

395 

V.  Everett 

339 

V.  Hunnicutt 

367 

V.  Kaufman 

314 

V.  Newby 

277 

Southern  R.  v.  Kendrick 

560 

Southgate,  The 

355 

Southwestern  R.  v.  Thornton 

489 

Spence  v.  Norfolk  R. 

462 

Spencer  v.  Chodwick 

343 

V.  Love joy 

534 

V.  Morgan 

97 

Spinetti  v.  Atlas  S.  S.  Co. 

355 

Spooner  v.  Manchester 

116 

V.  Mattoon 

30 

Sprague  v.  Smith         287, 

519  a 

520 

Springer  v.  Ford 

570 

V.  Schultz 

570 

Squier  v.  Squier 

215 

216 

Squire  v.  New  York  Central  R. 

366 

385 

Stacy  V.  Ice  Co. 

112 

Standish  v.  Narragansett  Steam- 

ship Co. 

570 

Stannard  v.  Prince 

277 

Star  of  Hope,  The 

346 

State  V.  Bryant 

49 

i\  Campbell 

536 

V.  Chovin 

536 

V.  Fitzpatrick 

43 

V.  Goold 

533 

V.  Grand  Trunk  R. 

560 

V.  Philadelphia  R. 

558 

V.  Ross 

566 

V.  Steele 

254 

Staub  V.  Kendrick 

572 

Steamboat  Lynx  i?.  King 

321 

Stearns  v.  Marsh 

146 

192 

Steele  v.  Marsicano 

94 

P.  McTyer                272, 

280, 

329 

Steinweg  v.  Erie  R. 

365 

Stephens  v.  London  R. 

344 

Stephenson  v.  Hart 

462 

I'.  Price 

103 

Stevens  v.  Hurlbut  Bank 

192 

V.  Say  ward 

457 

Stewart  ?;.  Davis            115, 

118, 

146 

V.  Frazier 

30 

V.  Head 

252 

V.  London  R. 

580 

V.  Stone 

4 

XXX 


TABLE  OF  CASES 


[The  references  are  to  sections.    Many  other  cases  are  cited  by  book  and  page  simply] 


Stiles  V.  Davis  343,  398  b 

V.  Seaton  4 

Stimson  v.  Jackson  314,  338,  398  a 
Stockdale  v.  Dunlap  4G2 

Stockton  V.  Frey  554 

Stokes  V.  Saltoiistall  547,  554,  555 
StoUard  v.  (Jreat  Western  R.  391 
Stone  V.  Brown  154 

V.  Knowiton  473 

V.  Rice  415 

Storey  v.  Asliton  120 

Straus  V.  Kansas  City  R.  5G9 

Strauss  v.  County  Hotel  Co.  234 

Strickland  v.  Turner  143  a 

Strohn  v.  Detroit  R.  558 

Strong  V.  Nat.  Banking  Assoc.  193 
Stuart  V.  Bigler  209 

Stump  V.  Hutchinson  473 

Sturm  V.  Boker  3,  4 

Sullivan  v.  Park  446 

V.  Philadelphia  R.  555 

Sumner  v.  Charlotte  R.  322 

V.  Hamlet  160 

Swain  v.  Shepherd  462 

Swan  V.  Manchester  R.  536 

Swarthout  v.  New  Jersey  Steam- 
boat Co.  556 
Sweet  V.  Barney                       277,  395 
Swetland  v.  Boston  &  Albany  R. 

327,  332 
Swift  V.  Steamship  Co.  488 

Swindler  v.  Hilliard  365 


Taft  V.  Bowker  164 

Taintor  v.  Prendergast  465 

Taliaferro  v.  Baltimore  Bank       154 
Talley  v.  Great  Western  R.  317 

Talty  V.  Freedman's  Savings  Co. 

143,  184,  211 
Tamvaco  v.  Simpson  443 

Tan  oil  v.  Seaton  21 

Tarbell  v.  Central  R.  527 

r.  Shipping  Co.  410 

Tardos  v.  Chicago  R.  507 

Tate  V.  Meek  448 

V.  Yazoo  R.  307 

Tattan  v.  Great  Western  R.        455, 
450,471 
Tattersall  v.  Steamship  Co.  357 

Taussig  V.  Bode  84,  105 

Taylor  v.  Chester  148 

V.  Downey  252 


Taylor  v.  Grand  Trunk  R.    547,  549 
V.  Great-Northern  R.  390 

V.  Little  Rock  R.  500 

V.  Liverpool  Steam  Co.  355 

V.  Plummer  21 

V.  Tvu-ner  185,  215 

Tebbutt  V.  Bristol  R.  554 

Terre  Haute  R.  v.  Vanatta  537 

Texas  R.  v.  Commission  511 

V.  Nicholson  292,  478 

V.  Reiss  355 

Thames,  The  383,  392,  399,  405, 

410,  466 
Thayer  v.  Burchard  295 

Tliird  Nat.  Bank  v.  Bovd        18,  146, 
172,  175 
Thomas    v.    Boston    &    Provi- 
dence R.  278,  325 
V.  Rhymney  520 
V.  Shi'p  Morning  Glory  384 
V.  Snyder  432 
Thompson  v.  Dolliver             138,  161 
i\  Fargo                                     463 
V.  Harlow  112 
V.  New  Orleans  R.           559,  560 
V.  Patrick  179 
V.  Small                                        422 
V.  Toland                   154,  216,  219 
Thomson  v.  Trail                             422 
Thorne  v.  Deas  22 
Thorpe  v.  Concord  R.                      535 
V.  New  York  Central  R.    519  a, 
528 
Tierney  v.  N.  Y.  Central  R.           322, 

345 
Tindal  v.  Taylor  422 

Tobin  V.  Crawford  433 

Todd  V.  Old  Colony  R.  533 

Toledo  R.  V.  Baddeley  560 

V.  Beggs  524 

V.  Roberts  471,  473,  478 

Toledo.  &c.  R.  v.  Hammond  572 

Towne  v.  Wiley  16 

Townsend    v.    New    York    Cen- 
tral R.  537 
Tracy  v.  Wood                              26,  30 
Transportation  Co.  v.  Downer     355, 

384 
Transportation  Line  v.  Hope  281 
Trask  v.  Duvall  433  a 

Travis  v.  Thompson  438 

Treadwell  v.  Davis  182,  183 

TrefTtz  r.  Canelli  43 

Trowel  1  i\  Youmans  457 

Tucker  v.  Taylor  100 


TABLE  OF  CASES 


XXXI 


[The  references  are  to  sections.    Many  other  cases  are  cited  by  book  and  page  simply] 


Tybee,  The 

Tyrrell  v.  Eastern  R. 


u 

Ultzen  V.  Nicols 
Union  Bank  v.  Roberts 
Union  Cattle  Co.  v.  Trust  Co, 
Union  Co.  v.  Mallory 
Union  Express  Co.  v.  Graham 


410 
555 


32 

190 
196 
79 
342, 
363 
431 
174 
524 


Union  Freiglit  Co.  v.  Winkley 
Union  Nat.  Bank  v.  Post 
Union  Pacific  R.  v.  Nichols 
Union  Steamboat  Co.  v.  Knapp  410 
Union  Stock  Yard  Co.  v.  ]\Iallory  93 
Union  Trust  Co.  v.  Rigdon  196 

Union  Water  Co.  v.  Pluming  Co.  489 
United  Co.  v.  Cleveland  112 

United  States  v.  Shea  131 

United    States   Express    Co.    v. 

Backman  366,  384 

V.  Haines  499 

V.  Harris  367 

V.  Keefer  406,  462 

V.  Meinto  182 

V.  Root  479 

Upham  V.  Barbour  176 


Vail  V.  Pacific  R.  327,  348,  350 

Van  Blarcom  v.  Broadway  Bank 

184,  185,  214 
Van  Buskirk  v.  Roberts    519  a,  533, 

559 
Vanderbilt  v.  Turnpike  Co.  120 

Vankirk  v.  Pennsylvania  R.  538 

Van  Winkle  v.  South  Carolina  R.  350 
Varble  v.  Bigley  265,  275,  281 

Vaughan  v.  Providence  506 

V.  Webster  _  132 

Vedder  v.  Fellows  536 

Velasquez.  Tlie  555 

Venus.  Tlie  467 

Vermont  R.  v.  Fitehburg  R.  286 

Verner  v.  Sweitzer  276,  278,  375 
Vigo  Society  v.  Brumfield  107,  113 
Vinal  r.  SpoflFord  100 

Violett  V.  Stettinins  423 

Virginia  SteamI)oat  v.  Kraft  438 
Vitrified  Pipes,  In  re  448 


w 

Wabash  R.  v.  Illinois 
Waddle  v.  Owen 
Waland  v.  Elkins 
Walker  v.  Jackson 

V.  York 
Wall  V.  Cameron 
Walling  V.  Potter 
Walston  V.  Myers 
Ward  V.  New  York  Central  R. 

V.  Ward 
Water  Power  Co.  v.  Brown 
Waters  v.  Merchants  Ins.  Co. 
Watkins  v.  Roberts 
Watson  V.  Cross 

V.  Memphis  R. 
Watts  v.  Boston  &  Lowell  R. 
Way  V.  Davidson 
Webster  i\  Fitehburg  R 
Weed  V.  Barney 

V.  Saratoga  R. 
Weeks  v.  New  York  Central  R. 


436  a,  509 
184 

288,  486 
339 
370 
478 
231 
469 
478 
209 
196 
344 
57 
253 
497 
309 

169,  189 
526 
406 
473 
552, 
578 
432 
488 
412 


Wegnelin  r.  Collier 
Wehjuann  r.  ^Minneapolis  R. 
Welch  V.  Concord  R. 
Wells  V.  American  Express  Co.   400, 

406 
1-.  Porter  84 

V.  Wilmington  R.  305 

Welsh  V.  Pittsburg  R.  352 

Wentworth  r.  Day  16,  79,  89 

V.  McDuffie  3.  112,  115 

Wernwag  v.  Philadelphia  R.  398  a 
Wertheimer  v.  Penn.  R.  365 

West  V.  Steamboat  Berlin  345 

Westeott  V.  Fargo  367,  475 

Western  R.  v.  Little  416 

Western  Trans.  Co.  i\  Barber  396 
Western  LTnion  Co.  v.  Dubois  223 
Weston  V.  Grand  Trunk  R.  478 

Weymouth  v.  Gile  87 

Wheeler  v.  Newbould  196 

Wheelock  v.  Boston  &  Albany  R. 

545,  562 
White  r.  Bascom       79,  91,  127,  420, 

465 
V.  Boulton  517 

V.  Colorado  Central  R.       79,  83 
V.  Fitehburg  R.  521 

V.  Great  Western  R.  472 

v.  Humphrey  414 

V.  ]\Iadison  92 

V.  Piatt  164,  189 


XXXll 


TABLE  OF  CASES 


[The  references  are  to  sections.    Many  other  cases  are  cited  by  book  and  page  simply] 


White  V.  Vann  438 

r.  Wiimisimmet  313 

Whitehead  v.  Vanderbilt  47 

White    Mountains    R.    v.    Bay 

State  Iron  Co.  208 

Whittield  v.  Despencer  220 

Whitin  V.  Paul  174 

Whitlock  V.  Heard  103 

Whitmore  v.   Steamboat  Caro- 
line 573 
Whitney  v.  Lee  30 
V.  Peay                                        184 
Whitney  Arms  Co.  v.  Barlow       489 
Whitten  v.  Wright                           173 
Whitworth  v.  Erie  R.            487,  500 
Wibert  v.  New  York  R.                   390 
Wichita  Savings  Bank  v.  Atch- 
ison R.                                            383 
Wiggin  V.  Boston  &  Albany  R.      315 
Wilcox  V.  Chicago  R.                       393 
V.  Fairhaven  Bank          146,  199 
Wiley  v.  First  National  Bank         18 
V.  Nortliampton  Bank        18,  31 
Wilkie  V.  Day                                    140 
Wilkinson  i\  Verity                    41,  61 
Willetts  V.  Hatch                             175 
Williams  v.  Baltimore  R.               471 
V.  Grant                                     328 
V.  Vanderbilt                             559 
Willock  t'.  Railroad                         326 
Willoughby  v.  Horridge       280,  313. 

354 

Wilson  V.  California  R.  480 

V.  Grand  Trunk  R.  579 

V.  Hamilton  280,  353 

V.  Harry  483,  488 

V.  Jones  92 

V.  Little  162 

V.  London  Steam  Nav.  Co.    410 

V.  Southern  Pac.  R.  83 

Wilton  V.  Middlesex  R.  505 

Wiltshire    Iron    Co.    v.    Great 

Western  R.  438 

Windle  v.  Jordan  12() 

Winkfield  C.  A.,  The  60 

Winslow  V.  Vermont  R.         392,  411 


Winter  v.  Pacific  R.  344 

Wiser  v.  Chesley  235 

Witbeck  v.  Holland  399,  413,  474 
Withers  ;;.  Sandlin  170 

Wolf  r.  American  Express  Co.  350 
Wood  V.  Matthews  140 

Woodger  v.  Great  Western  R.  479 
Wood  Harvester  Co.  v.  Dobry  83 
Woodman  v.  Nottingham  127 

Woodruff  Co.  V.  Diehl  279 

Woods  I'.  Devin  572 

Woodward  v.  Booth  473 

V.  Exposition  R.  143,  160 

V.  Painter  68 

Wool  ley  V.  Louisville  Banking 

Co.  214 

Wooster  t\  Tarr  431,  432 

Wordsworth  v.  Willan  555 

Worsdell,  Re  398  c 

Wright  V.  Caldwell  476 

^v.  Melville  133 

V.  Midland  R.  520 

V.  Snell  437 

Wyckoff  11.  Queens  County  Ferry 

Co.  280 

V.  Anthonv  210 

Wyld  V.  Pickford  359,  363,  475 


Yeatman  v.  Savings  Institution  187 
Yeomans  v.  Contra  Costa  Steam 

Nav.  Co.  524 

Yorks  Co.  V.  Central  R.         249,  363 

Young  V.  Leary  128 

V.  Moeller  433 

Yznaga  v.  Steamboat  Richmond  573 


Zell  V.  Dunkle  81 

Zimmer  r.  N.  Y.  Central  R.  377 

Zinn  V.  New  Jersey  Steamboat 
Co.  480 


THE  LAW  OF   BAILMENTS 


PART   I. 
BAILMENTS  IN  GENERAL. 

1.  Bailment  as  to  its  nature  relates  exclusively  to  personal 
property,  and  the  law  is  considered  trom  the  standpoint  of 
title.  Three  elements  constitute  at  our  law  a  perfect  title : 
(1 )  possession ;  (2)  the  right  of  possession ;  (3)  the  right  of 
property  or  ownership.  Of  these  elements  bailments  comprise 
(1)  and  (2),  but  not  (3)  ;  and  hence  bailment  maybe  said  in 
a  broad  sense  to  consist  in  rightful  possession  of  a  chattel 
severed  from  its  ownership.^ 

2.  Rightful  possession  necessarily  is  here  contemplated. 
For  wherever  one  becomes  the  wrongful  possessor  of  a  chat- 
tel or  thing  personal,  he  is  not  only  criminally  liable,  but,  in 
the  civil  sense  which  here  concerns  us,  he  is  at  the  law  abso- 
lutely responsible  in  damages  for  the  thing  or  its  value,  no 

1  §§  1,  2.  It  is  often  found  convenient  to  study  the  law  by  regarding 
specific  property  and  considering  title  thereto  and  other  incidents.  Real 
propeity  is  usually  treated  in  this  manner  by  text-writers,  and  the  same 
may  be  said  of  personal  property,  notwithstanding  the  many  various 
kinds  which  involve  various  incidents.  In  such  an  investigation  the  law 
of  Bailments  corresponds  to  that  of  Gifts  and  Sales.  For  under  Bailments 
we  discuss  an  acquired  title  in  the  holder,  which  stops  short  of  ownership, 
wliether  with  or  without  a  mutual  consideration  ;  while  that  title  whose 
essence  includes  full  ownership  is  discussed  correspondingly  under  Gifts, 
where  the  transfer  was  without  consideration,  or  under  Sales,  where  the 
transfer  was  upon  mutual  consideration. 


,^ 


2  THE   LAW   07  BAILMENTS 

matter  how  irresistible  on  jns  part  may  have  been  tlie  occasion 
of  its  loss  or  injury.^ 

3.  For  a  broad  legal /definition  it  may  be  said  that  bailment 
consists  in  the  rightml  holding  of  a  chattel  (or  thing  per- 
sonal)  by  some  party/ under  an  obligation  to  return  or  deliver 
it  over  (or  in  certoiiT_instajicesJjj3ld^as  full  owner),  after  some 
S|3ecial  purpose  is  accomplished.^  Such  a  definition  may 
suffice  for  the  present  treatise;  and  yet  the  fundamental  prin- 
ciple of  bailment  responsibility  applies  in  many  legal  rela- 
tions whose  discussion  comes  more  amply  under  other  heads. 
Wherever  the  law  of  bailments  is  applied,  it  is  the  bailee,  or 
holder  of  the  chattel,  whose  rights  and  obligations  are  chiefly 
viewed ;  the  rights  and  obligations  of  the  bailor  being  corre- 
spondingly adjasted.^ 

1  §§  17,  18.  We  shall  see  this  principle  applied  to  bailees  who  by  de- 
parting from  tlie  terms  of  the  permitted  trust  commit  a  breach  ;  as 
bailees  who  misappropriate  or  inexcusably  deviate  from  the  bailment 
undertaking.  Such  a  rule  applies  likewise  to  a  tortious  capture  in  war 
which  the  law  of  belligerents  fails  to  justify.  And,  more  generally,  where 
one  is  a  tortious  jiossessor,  —  as,  e.  g.,  if  he  steals  ray  boat,  and,  while  pulling 
it,  is  overtaken  by  irresistible  flood  or  tempest,  —  the  circumstance  which 
caused  the  loss  is  of  no  avail  to  him,  for  the  law  pronounces  him  an 
insurer.  Fisher  v.  Kyle,  27  Mich.  545 ;  Wentworth  v.  McDuflie,  48  N.  H. 
402. 

2  §§  2,  3.  A  good  definition  (and  the  more  so  since  it  is  based  upon  the 
word  "bailment,"  importing  literally  "  delivery  ")  is  this  :  A  delivery  of 
some  chattel  by  one  party  to  another,  to  be  held  according  to  the  special 
purpose  of  the  delivery,  and  to  be  returned  or  delivered  over  when  that 
special  purpose  is  accomplished.  Bouv.  Diet.  Bailment,  citing  Prof.  Joel 
Parker,  late  of  Harvard  University.  But  the  subject  takes  a  wider  scope 
for  treatment;  for  it  is  obvious  that  one  may  be  a  bailee  in  many  instances 
without  delivery ;  as  where  an  owner  sells  and  then  continues  in  possession 
for  some  temporary  purpose,  not  to  add  cases  of  finding,  seizure,  or  attach- 
ment. So,  once  more,  where  one  takes  as  bailee  with  an  option  to  buy 
(e.g.  a  horse  taken  on  trial),  the  exercise  of  the  option  takes  the  place  of 
"  return  or  delivery  over."  While  no  one  is  to  be  pronounced  a  respon- 
sible bailee  without  his  knowledge  and  acceptance,  the  simple  fact  of 
knowingly  taking  and  holding  possession  (as  in  case  of  a  finder  or  salvor) 
will  subject  one  to  that  responsil)ility.  See  §  3  ;  Kohler  v.  Hayes,  41  Cal. 
455;  Sturm  v.  Boker,  150  U.  8.  312. 

^  §§  2,  3.  The  liability  an  executor  or  administrator,  or  a  trustee, 
or  a  commission    merchant  or   other    agent    incurs  in    respect    of   per- 


BAILMENTS   IN   GENERAL  3 

4.  Delivery  back  or  over  (or,  at  all  events,  a  due  termina- 
tion of  this  bailment  relation)  is  contemplated,  as  distin- 
guished from  one's  full  ownership  of  a  chattel ;  and  hence, 
however  changed  in  product  or  species  the  thing  bailed  may 
become,  that  specific  thing  retains  its  identity  while  the  bail- 
ment relation  lasts. ^  On  such  a  principle  we  distinguish  from 
bailment  the  gift  or  sale  of  a  thing  personal .^ 

5.  Coggs  V.  Bernard  is  historically  the  leading  case  of  bail- 
ment law  in  our  English  jurisprudence.  It  was  decided  at 
Westminster  Hall  in  1703 ;  and  for  the  first  time  the  court 
expounded  here,  with  an  attempt  at  method,  the  English  law 
of  bailments.  The  point  decided  was  that  a  certain  bailment 
responsibility  exists  on  the  part  of  a  gratuitous  bailee,  and 

sonal  property  in  his  representative  custody,  may  be  studied  in  works 
on  those  subjects  ;  and  it  will  be  seen  to  apply  our  bailment  principle. 
But  such  fiduciaries  are  often  intrusted  with  business  of  a  different  or 
more  comprehensive  nature,  and  hence  we  may  exclude  them  from  our 
general  treatment. 

^  §§  6-8.  Milk  may  be  bailed  to  be  returned  in  cheese  or  butter.  Stewart 
V.  Stone,  127  N.  Y.  500.  Or  apples  to  be  ground  into  cider,  rough  logs  to 
be  cut  into  boards,  corn  to  be  returned  as  meal,  etc.  See  Stewart  r. 
Stone,  127  N.  Y.  500 ;  Chase  r.  Washburn,  1  Ohio  St.  2U  ;  Brown  v. 
Hitchcock,  28  Vt.  452.  But  as  to  the  Roman  miituum,  or  a  sale  of  equiva- 
lents, —  as  where  one's  sheep  are  bought  under  a  contract  to  return  the 
same  in  kind, —  this  is  no  bailment.  An  ordinary  bank  deposit  of  a 
hundred  dollars  creates  in  the  bank  an  obligation  to  return  a  hundred 
equivalent  dollars  ;  but  where  a  trunk  of  dollars  is  left  with  a  special 
depositary,  the  latter  becomes  a  bailee,  with  an  undertaking  to  return  the 
trunk  and  contents  intact.  As  to  the  business  of  grain  elevators,  which 
depends  upon  custom  or  a  particular  contract,  see  §  8. 

■^  lb.  In  a  mutunm  there  is  virtually  a  sale  of  the  thing  given  over. 
The  rights  and  liabilities  of  owner  vest  in  the  party  receiving  possession, 
unlike  the  case  of  a  mere  bailee.  There  are  many  interesting  cases 
which  consider  whether,  from  the  wording  and  apparent  intent  of  an 
instrument,  there  was  a  bailment  or  a  conditional  sale  first  intended  ;  as 
in  case  of  a  printing  press,  sold  outright  on  the  instalment  plan,  or, 
instead,  leased  for  so  much  periodical  hire,  with  a  stipulation  that  the 
hirer  (or  bailee)  shall  have  finally  a  bill  of  sale  upon  the  due  fulfilment  of 
his  obligation  to  pay  the  hire  money  for  the  term  prescribed.  Cf.  Stiles 
V.  Seaton,  200  Penn.  St.  114;  Nye  v.  Daniels,  75  Yt.  81.  See  also  the 
distinction  made  in  Sturm  v.  Boker,  150  U.  S.  312. 


THE   LAW   ©F  BAILMENTS 


even  though  one  merely  undertakes  to  do  a  favor  in  consent- 
ing to  occupy  that  relation.  ^ 

6.  Bailment  classification  according  to  recompense  appears 
the  true  modern  method  and  preferable  to  that  which  was  laid 
down  in  this  case  by  Lord  Holt  and  followed  by  later  writers, 
including  Judge  Story .^  Under  such  a  method,  this  writer 
submits  tlie  following  scheme  i^ 


I.  Batoients  for 
THE  Bailor's  solk 
Benefit  ;  or  with- 
out Benefit  to 
THE  Bailee. 


II.  Bailments  for 
THE  Bailee's  sole 
Benefit. 


Including  aniona;  the  special 
purposes  of  such  bailments 
more  particularly  :  — 

(a)  The  gratuitous  taking  of 
a  thing  on  deposit ;  (b)  the 
gratuitous  performance  of 
work  upon  a  thing  ;  (c)  the 
gratuitous  carriage  of  a 
thing  from  place  to  place. 

(d)  The  lending  of  a  thing; 
i.e.,  practically  for  its  tem- 
porary enjoyment  by  the 
borrower. 


Or,  under  the  old 
method  of  classifi- 
cation :  — 

(a)  Depositiim. 

(b,  c)  Mandatum. 


(d)  Commodatum. 


All  of  the  foregoing  are  sometimes  styled  gratuitous  bail- 
ments. 

(a)  Locatio    custodiee 

(b)  Locatio  operis  fa- 
ciendi. 

(c)  Locatio  operis  mer- 
ciui7i  vehendarum. 

((/)    Locatio  rei. 

(e)    Pignus- 


III.    Ordinary  Bail 
MENTS  for  Mutual  ' 
Benefit. 


IV.     Exceptional 
Bailments. 


(  (a)  The  taking  of  a  thing  on 
deposit  for  reward;  {b)  the 
performance  of  work  upon 
a  thing  for  reward;  (c)  the 
carriage  of  a  thing  from 
place  to  place  on  reward ; 
(d)  the  hiring  of  a  thing, 
i.  e.,  for  temporary  enjoy- 
ment; also,  (e)  the  pledge  or 
pawn  of  a  thing. 

I    (a)  Postmasters. 
-;    [b]   Innkeepers. 

(c)   Common  Carriers. 


(a,   c)    A    branch    of 

Locatio    operis    mer- 
citon  vehendarum. 
(b)    A  branch   of  Lo- 
catio custodice. 


1  §§  10-12.  Coggs  V.  Bernard,  2  Ld.  Raym.  909  ;  1  Smith  Ld.  Cas.  283. 
And  see  elaborate  opinion  pronounced  by  Lord  llolt,  in  this  case.  The 
crude  mode  of  classification  with  Roman  titles  wliich  the  distinguished 
Chief  Justice  here  doubtfully  suggested,  was  later  adopted  by  Sir  Wil- 
liam Jones  and  Judge  Story  in  tlieir  respective  treatises  on  "  Bailments." 

^  §14.  Ih.  Judge  Story  himself,  in  a  footnote  to  his  famous  text-book 
on  the  sul)ject,  admits  that  a  better  grouping  might  be  made  as  above. 
Story,  Bailments,  §  14. 

8  §14. 


BAILMENTS   IN   GENERAL  5 

7.  The  standard  of  care  and  diligence  to  be  thus  applied 
varies  in  the  foregoing  classes  of  bailments,  as  in  other  instances 
of  common-law  doctrine,  by  the  question  of  recompense.  In 
other  words  (save  for  the  exceptional  bailments  to  be  hereafter 
discussed,  where  public  policy  makes  an  exceptional  rule),  the 
quid  pro  quo  on  either  side,  or  on  both  sides,  makes  the  pre- 
sumable test  of  a  bailee's  responsibility  in  the  course  of  his 
fiduciary  relation  to  the  chattel  or  chattels. ^  Here,  then,  is  the 
standard : 

The  measure  of  care  and  And  the  measure  of  neg- 
diligence  exacted  of  the  ligence  for  which  he 
bailee  is  :  —  becomes      answerable 

is  :  — 
I.    In  bailments  for  the  =  Slight.  =  Gross   (or    more    than 

bailor's  sole  benefit.  ordinary). 

II.    [n  bailments  for  mu-  =  Ordinary.  =  Ordinary, 

tual  benefit. 

III.  In  bailments  for  the  =  Great  (or  more  =  Slight. 

bailee's  sole  benefit.  than  ordinary). 

IV.  In  exceptional  bail-    =  An  Exceptional  Responsibility, 
ments  (Postmasters,  (Approximating 
Innkeepers,  Common         insurance  in  the 
Carriers).  two    latter    in- 
stances.) 

^  §§  15,  16.  It  has  not  escaped  comment  that  an  adjustment  of  rights 
and  duties  like  this  is  inexact.  Our  unit  here  is  "  ordinary  "  or  "  aver- 
age "  ;  and  yet  ordinary  diligence  must  differ  with  the  nature  and  value 
of  a  particular  thing,  the  peculiar  risks  to  which  it  may  be  exposed,  and 
the  like.  True,  and  yet  the  unit  is  such  as  men  can  apply  to  a  particular 
state  of  facts.  Rainbow  colors  blend  imperceptibly,  and  yet  the  generality 
of  people  distinguish  them.  It  is  usual  for  a  jury  to  test  all  the  facts 
and  circumstances  by  this  relative  standard  and  determine  accordingly. 

Other  tests  of  comparison  have  been  attempted,  but  not  successfully, 
nor  so  as  to  induce  the  courts  to  substitute  them  for  that  (as  in  our  text) 
of  "  slight,"  "ordinary,"  "great."  But  it  is  found  preferable  to  fit  such 
adjectives  to  "  diligence,"  an  affirmative  word,  rather  than  to  its  correl- 
ative "  negligence."  And  while  in  general  cases  of  tort,  culpable  negli- 
gence may  perhaps  be  tested  sufficiently  by  the  criterion  of  ordinary  care 
and  prudence,  negligence  in  bailment  considers  conduct  exercised  towards 
some  specific  personal  property,  and,  moreover,  conduct  in  a  transac- 
tion, which  involves  always  the  element  of  recompense,  of  advantage, 
mutual  or  on  one  side  only.     "We  distinguish  the  law  of  gift  and  sale  (as 


«b 


-^-'H^vv.f^ 


6  THE   LAW   OF   BAILMENTS 

8.  Honesty  and  good  faith  are  also  required  of  a  bailee,  and 
this,  whether  his  particular  service  contemplates  a  reward  or  is 
merely  gratiiitous  in  its  intent.  For  a  bailment  is  a  trust, 
under  any  circumstances,  and  exacts  of  the  bailee  an  honest 
performance,  together  with  such  degree  of  care  and  diligence 
as  may  properly  relate  to  the  particular  undertaking.^ 

9.  Agents  or  servants  may  be  employed  in  a  bailment ;  and 
wherever  the  bailee  is  a  corporation,  the  law  of  agency  is  con- 
stantly invoked  to  determine  the  extent  to  which  the  master 
or  principal  may  be  held  legally  responsible  for  the  careless- 
ness or  wilful  misconduct  of  the  agent,  servant,  or  other  sub- 
stitute who  becomes  concerned  in  the  undertaking.  Were  the 
bailment  relation  strictly  personal,  permitting,  under  the  con- 
tract of  the  parties  concerned,  no  substitution  or  employment 
of  a  third  person  whatever,  considerations  of  this  kind  would 
not  arise. ''^ 

10.  The  effect  of  special  contract,  express  or  implied,  may  be 
considered  in  the  relation  of  bailor  and  bailee ;  and  this  to  tlie 
extent  of  modifying  or  explaining  the  presumed  and  primary 
relation  we  are  considering.     For  the  parties  themselves  are 

to  an  unexecuted  contract)  upon  this  element  of  recompense  ;  and  in  the 
obligations  of  bailment  law  a  like  distinction  is  found.  See  Giblin  ik 
McMullen,  L.  R.  2  P.  C.  836  (1869);  First  Nat.  Bank  v.  Ocean  Nat. 
Bank,  60  N.  Y.  278  ;  Preston  v.  Prather,  137  U.  S.  604. 

1  §  17.  A  bailee  should  not  sell,  pledge,  or  otherwise  deal  with  the 
thing  as  though  he  were  full  owner.  The  continental  jurisprudence,  like 
our  own  and  that  of  every  civilized  country,  permits  not  even  the  bailee 
for  the  bailor's  exclusive  benefit  to  pursue  his  trust  dishonestly,  and  gross 
negligence  itself,  or  the  failure  to  bestow  sliglit  diligence,  though  desig- 
nated sometimes  dolo  proxima,  is  but  the  next  thing  to  fraud,  and  less 
censurable. 

2  The  general  distinction  between  agents  carelessly  performing  and 
agents  wilfully,  wantonly,  and  tortiously  performing  outside  the  real  or 
apparent  scope  given  by  the  principal,  will  be  found  applied  in  the  various 
classes  of  bailment  considered  liereafter.  See,  e.  g.,  sj^ecial  deposits  with  a 
bank,  Part  IL  But  it  is  further  observable  that  with  Innkeepers  and 
Common  Carriers, /jo.sV,  the  inclination  of  the  courts  is  to  discard  all  distinc- 
tions between  the  careless  and  the  wanton  misbehavior  of  a  servant,  so 
far  as  the  principal's  own  responsibility  to  his  bailor  is  concerned.  See 
Parts  V.  and  VI.     And  see  §  19. 


BAILMENTS   IN   GENERAL  7 

at  liberty  to  fix  the  time  and  mode  of  accomplishing  the  par- 
ticular bailment  purpose,  and  may  even  regulate  the  respon- 
sibilities of  the  relation  ;  but  with  this  general  restriction,  that 
the  terms  which  public  pohcy  a'nd  contemporaneous  legislation 
mipose  are  not  thus  to  be  transgressed.^ 

11.  Other  cardinal  maxims  may  here  be  stated  by  wa}"  of  a 
general  introduction  to  our  ex^Dosition  of  the  various  bailments, 
and  each  of  these  maxims  we  shall  have  frequent  occasion  to 
apply  specially.  (1)  Bailment  arises  only  upon  tlie  corporeal 
possession  of  the  thing  by  the  temporary  holder  or  his  agent ; 
though  there  may,  or  may  not  be,  a  contract  for  some  bail- 
ment. Thus,  if  I  agree  to  take  goods  to-morrow  on  storage, 
there  is  a  contract  for  a  bailment,  but  no  bailment  arises  until 
I  take  the  goods.^  (2)  Compound  bailments  may  exist,  in- 
volving the  mingled  undertakings  of  custody,  carriage,  or  work 
upon  a  thing ;  or  again,  so  that  one  part  of  the  service  is  upon 
recompense  and  another  gratuitous;  and  a  bailee's  liability 
may  shift  accordingl3\2  (3)  A  bailment  need  not  be  by  the 
full  owner  of  a  thing ;  for  privity  between  bailor  and  bailee 
suffices,  and  if  the  bailor  has  a  special  property  in  the  thing, 
he  may  bail  it  for  various  purposes.  A  bailee  has  only  to 
undertake  and  pursue  his  undertaking  in  good  faith  towards 
the  person  from  wdiom  he  received  the  thing,  and  of  course 

^  §  20.  Special  contract  will  be  seen  to  modify  considerably  the  pre- 
sumable engagement  of  parties  to  a  bailment  in  various  instances.  Thus, 
a  bailee  may  specially  agree  to  return  the  thing,  so  as  to  become  practi- 
cally an  insurer  of  its  safety;  while,  on  the  other  hand,  he  may  stipulate 
for  a  less  degree  of  care  or  diligence.  The  usual  standard  of  care  and 
diligence  (ante,  7),  applies  in  the  absence  of  some  special  agreement,  but 
what  the  parties  may  have  mutually  understood  in  respectof  the  bailment 
is  to  be  considered  in  the  same  connection.  But  this  limitation  should 
alwajs  be  borne  in  mind,  as  we  shall  observe  hereafter:  that  the  contract 
must  conform  to  public  policy,  whatever  such  policy  may  be.  No  bailee 
is  permitted  to  stipulate  for  absolute  exemption  from  the  consequences  of 
his  own  negligence ;  while  in  the  case  of  Common  Carriers,  public  policy 
asserts  its  rule  against  immunity  still  more  strongly. 

-  §  21. 

3  §  21.  See,  e  g.,  Mariner  v.  Smith,  5  Ileisk.  (Tenn.)  203  ;  Preston  v. 
Prather,  137  U.  S.  601. 


8  THE  LAW  OF  BAILMENTS 

honestly  in  the  first  instance.  But  while  he  should  not 
voluntarily  dispute  his  bailor's  title,  he  is  bound  at  his  peril  to 
regard  paramount  claims  of  ownership  brought  to  his  attention 
while  he  has  possession.^  (4)  Furthermore,  the  bailee's 
possession  constitutes  a  sufficient  title  to  enable  him  to  main- 
tain remedies  against  all  others  who  invade  liis  rights,  yielding 
only  to  a  superior  title,  and  to  such  interest  of  his  bailor  as 
may  consist  with  their  mutual  undertaking.  Even  a  mere 
finder  or  other  naked  bailee  without  reward  may  maintain  his 
possession  against  all  strangers  who  would  deprive  him 
thereof.2 

12.  Form  of  action  and  burden  of  proof  have  frequently  to 
be  considered  where  a  bailee  is  sued  for  culpable  loss  or  injury 
to  the  chattel  or  chattels  in  his  care  or  custody.  As  to  the 
form  of  action,  it  would  appear  that  the  bailor  has  usually 
the  right  to  bring  a  suit  sounding  either  in  contract  or 
tort,  at  his  option ;  since  culpable  loss  or  injury,  involving 
negligence  or  misconduct,  is  consistent  in  such  cases  with 
either  theory  where  redress  is  sought.^  As  to  burden  of 
proof,  there  is  more  apparent  than  real  discrepanc}^  in  the 
decisions,  or  rather  dicta  of  the  courts,  for  common  sense 
applies  to  the  particular  stage  of  proof  presented  by  the  facts 
in  such  an  issue.  ^Ve  may  say,  generally,  that  the  burden  of 
imputing  negligence  or  culpable  misconduct  to  another  rests, 
in  general,  upon  the  party  who  asserts  it;  and  yet  that  where 
the  facts  show  a  bailment  and  due  acceptance  of  certain 
chattels  in  a  good  condition,  and  they  are  not  returned  or 
delivered  over  at  all,  or  are  delivered  badly  damaged,  the 
burden  of  exculpation  or  exoneration  rests  upon  the  bailee,  if 

1  §  22.  Every  bailee  should  honor  his  bailor's  title  and  pursue  his 
undertaking  in  good  faith  towards  the  party  from  whom  he  received  the 
thing,  volunteering  no  dispute  of  such  party's  title ;  for  bailment  is  a  trust 
and  should  be  honestly  undertaken,  if  undertaken  at  all.  But  a  bailee  is 
bound  at  his  peril  to  regard  paramount  claims  of  ownership  brought  to 
his  atteiit^n  while  he  has  possession  aj»d  to  conduct  himself  accordingly. 

-"^22.     Va,vt' U',  post.  '  "  ■> 

8  1  Chitt.  PI.  151 ;  100  U.  S.  702  ;  Coal  Co.  v.  Richter,  31  W.  Va.  858; 
and  as  to  suits  against  Carriers,  see  Part  VI,  c.  7. 


BAILMENTS   IN   GENERAL 


at  all  events  such  loss  or  injury  could  not  ordinarily  have 
occurred  without  negligence  on  his  parL^ 

1  §  23,  and  numerous  cases  cited.  The  application  of  this  rule  to 
the  various  classes  of  bailments  will  be  considered  in  Parts  II,  III,  IV,  VI, 
post. 

The  law  is  always  consistent  with  itself  ;  and  whether  we  make  our 
study  from  one  point  of  view  or  another,  the  legal  result  will  be  found 
the  same. 


'W^- 


<^  PART  II. 


BAILMENTS  FOR  THE  BAILOR'S  SOLE  BENEFIT; 
OR  WITHOUT  BENEFIT  TO  THE  BAILEE. 


GRATUITOUS   SERVICE   ABOUT   A   CHATTEL. 

13.  By  way  of  classification  we  are  to  consider:  I.  Matters 
preliminary,  including  delivery  in  bailment.  II.  Accomplish- 
ment of  the  bailment  purpose.  III.  Termination  of  the  bailment. 

14.  I.  Matters  Preliminary.  As  to  the  laature  of  the  under- 
taking, no  arbitrary  rule  of  division  among  the  common 
pursuits  of  life  could  do  justice  to  the  present  topic.  A 
gratuitous  bailment  is  outside  of  one's  business,  so  to  speak ; 
or,  in  other  words,  it  applies  wherever  the  party  who  carries 
on  a  bailment  vocation  for  reward  deals  exceptionally  with  a 
party  on  the  footing  of  a  favor,  and  no  recompense  is  mutually 
intended.  It  is  enough,  whether  with  or  without  a  mutual 
understanding,  that  the  bailee  in  the  present  instance  serves 
without  recompense  or  benefit,  since  the  party  to  be  benefited 
may  not  always  be  apparent.  And  as  in  all  other  topics  of 
bailment  law,  benefit,  recompense,  or  advantage  is  viewed 
with  reference  not  to  the  actual  result,  but  to  the  purpose  of 
the  undertaking.^ 

15.  The  kinds  of  gratuitous  bailment  are,  as  in  bailments  for 
hired  service :  (1)  to  keep  the  chattel  in  custody,  or  (2)  to 
perform  some  work  upon  it ;  or  (3)  to  carry  it  from  place  to 
place.  Under  one  or  another  of  these  thi-ee  sub-classes,  liow- 
ever  compounded  may  be  the  transaction,  do  such  bailments 
commoidy  range ;  custody  of  a  thing  being  a  passive  sort  of 
relation,  as  compared  with  the  other  two.^ 

1  §§    24,  25. 

2  §  25.  Under  one  or  another  of  these  sub-classes  does  the  baihnent 
without  benefit  to  the  bailee  usually  fall,     l.ut  Sir  William  Jones  and 


BAILMENTS  FOR  BAILORWiSOLE   BENEFM^  11 

16.  Foundation  in  contract  or  notin  contract  may  here  be 
distinguished.  Where  the  baihnent''^.>£c)unded  in  contract 
and  on  express  undertaking  oral  or  written,  the  familiar 
rules  of  contract,  —  e.  g.  as  to  competent  parties  and  a  volun- 
tary assent  —  will  here  apply.^  But  a  bailment  of  the  present 
class  might  be  constituted  where  the  undertaking  was  not 
strictly  upon  contract,  or  where  circumstances,  at  least,  ren- 
dered a  mutual  assent  impossible,  needless,  or  impracticable. 
Such,  for  instance,  is  the  case  of  a  finder  of  things  upon  land, 
who,  unlike  salvors  by  water,  can  claim  no  legal  recompense, 
but  only  the  reimbursement  of  reasonable  expenses,  unless  a 
reward  had  been  promised,  or  some  local  statute  changed  the 
common-law  rule.^  So,  too,  is  it  with  judicial  attachment 
and  the  custody  of  a  keeper,  unless,  indeed,  as  usually  occurs, 
the  element  of  recompense  enters,  making  such  custodian  a 

Judge  Story  have  preferred,  following  Lord  Ilolt  in  Coggs  r.  Bernard  (2 
Ld.  Rayni.  909),  to  discuss  bailments  of  this  class  under  two  distinct 
titles  taken  from  the  Roman  Law.  They  give  us  Depositum,  a  Deposit, 
and  j\Tnndatum,  a  Mandate ;  the  former  applying  to  all  bailments  for 
gratuitous  custody,  the  latter  to  gratuitous  work  and  carriage,  or  the 
residue.  The  bailee  in  the  former  case  they  style  the  dcposi/ary  :  in  the 
latter,  the  mandatary.  The  use  of  such  technical  words  appears,  how- 
ever, disadvantageous  and  needless.  And  besides,  Roman  distinctions  at 
the  civil  law  are  here  of  no  precise  significance.  A  depositary,  in  the 
English  sense,  would  usually  import  one  whose  vocation  of  custody  is  for 
hire,  while  a  mandatary,  as  the  civil  law  regarded  him,  meant  simply  a 
gratuitous  agency,  which  might  equally  apply  to  our  unpaid  bailee,  or 
to  an  unpaid  oral  messenger.  Of.  at  length,  §  26  ;  Story,  Bailm.  §§  47,  137; 
Jones.  Bailm.  64;  Colquhoun  Rom.  Civ.  Law,  §§  17:56-1 7o9,  2068,  2069. 

^  §  27.  But  infants  have  sometimes  been  held  liable  as  bailees,  by 
considering  the  tort  instead  of  the  contract  side  of  the  present  relation. 
Towne  v.  Wiley,  23  Vt.  3.')5.  A  bailment  undertaking  should  not  con- 
travene the  rule  of  sound  policy  or  good  moi-als.  An  assent  is  always 
needful,  whether  evinced  by  words  or  acts.  No  one  becomes  responsible, 
even  as  a  gratuitous  bailee,  where  goods  are  surreptitiously  placed  in  his 
carriage  or  thrust  upon  him  without  his  knowledge  and  assent;  though 
if,  after  ascertainment  of  the  fact,  he  went  on  with  the  trust,  this  might 
bind  him.  Lethbridge  r.  Phillips.  2  Stark.  514;  INIichigan  Central  R. 
V.  Carrow,  73  111.  348;  Green  r.  Birchard,  27  Tnd.  483. 

2  §  28.  2  Kent,  Com.  356,  357;  Wentworth  v.  Day,  3  Met.  (Mass.) 
352. 


12  THE   LAW   OF   BAILMENTS 

bailee  of  the  third  class.^  A  gratuitous  stakeholder  may  or 
may  not  serve  by  virtue  of  contract  with  bailors  of  the  thing 
deposited,  according  to  circumstances.^ 

17.  The  test  of  recompense  or  no  recompense  may  often  be  a 
delicate  one  to  apply,  but  the  question  is  one  of  fact,  depend- 
ing  upon  the  proof  of  mutual  inteiit  It  is  not  necessarny 
money  recompense  to  be  considered,  since  a  contemplated 
benefit  to  the  bailee,  though  contingent  and  indirect,  maj^  ren- 
der the  bailment  one  of  our  third  class.^  And  cases  may  arise 
where  a  bailment  originally  gratuitous  changes  to  a  bailment 
for  hire.* 

18.  Servants  or  agents  in  such  bailments  are  considered,  at 
the  outset,  with  reference  to  the  authority  or  want  of  authority 
to  bind  the  master  or  principal.  One  may  have  accepted  the 
chattel  in  a  personal  capacity,  or,  instead,  in  some  particular 
representative  capacity  ;  and  if,  in  the  latter  case,  such  accept- 
ance was  unauthorized  in  the  real  or  apparent  scope  of  one's 
powers  as  agent  or  servant,  he  binds  only  himself  in  the  bail- 
ment.^ 

1  §  28.  The  New  York  rule  regards  the  baihiient  as,  in  effect,  one  for 
hire,  rhelps  v.  People,  72  N.  Y.  liU ;  41  N.  Y.  Super.  284.  See  Part  IV, 
poyt. 

■^  §  28.  A  stakeholder  of  property  becomes  a  bailee,  his  undertaking 
involving  an  exercise  of  discretion  as  to  delivery  over.  So,  too,  where 
money  is  paid  into  court,  and  the  clerk  holds  property  as  a  specific  and 
not  a  general  deposit. 

8  §  29.  See  Newhall  v.  Paige,  10  Gray  (Mass.),  368.  Where  one 
undertakes  in  the  line  of  his  usual  business,  it  may  be  presumed  a  bail- 
ment upon  recompense,  and  one  consequently  of  the  third  class  ;  but  such 
a  presumption  may  be  overcome  by  tlie  proof.  See  Kinchelo  i\  Priest, 
89  Mo.  240  ;  4  Thomp.  &  C.  (X.Y.)  96  ;  Preston  v.  Pratlier,  137  U.  S. 
604.  A  bailee's  silent  determination  to  charge  nothing  is  not  enough, 
where  the  bailor's  reasonable  expectation  was  otherwise ;  and  so  vice 
versa,  with  the  bailor's  expectation  not  to  be  charged.  11  Blatchf.  (U.S.) 
362.  Mere  expectation  of  holding  business,  etc.,  introduces  a  difficult 
element  ;  yet  the  question  of  recompense  is  usually  for  a  jury  to  deter- 
mine on  the  facts.     See  further  Part  IV. 

*  As  where  bonds  originally  left  for  gratuitous  custody  are  afterwards 
by  mutual  con.sent  made  a  standing  security  (or  pledge)  for  advances  of 
money  to  tin;  bailee.      Preston  v.  Pratlier,  P17  U.  S.  6()4. 

''  §  30.    Here,  once  more,  we  have  an  issue  mainly  of  fact  upon  all  the 


BAILMENTS  FOR   BAILOR'S   SOLE   BENEFIT  13 

19.  Personal  property  is  the  sole  subject-matter  of  all  bail- 
ments ;  but  specific  personal  property  here  bailed  may  consist 
of  corporeal  or  incorporeal  chattels,  things  in  possession  or 
things  in  action  (so  called) ,  or  both  kinds  together ;  and  the 
bailment  may  be  either  of  a  bare  thing  or  of  personal  property 
contained  in  some  receptacle.^ 

20.  Delivery  or  taking  possession  is  here  of  the  physical 
or  corporeal  sort,  since  such  a  possession,  rightfully  procured, 
is  essential  to  charge  one  as  a  bailee ;  and  this,  of  course, 
excludes  for  the  time  being  the  holder's  ownership  in  the 
thing.  Delivery  in  bailment  imports  a  corresponding  accept- 
ance, and  the  undertaking  itself  is  reciprocal;  but,  conformably 
to  our  general  rule,  there  may  be  a  rightful  holding  of  posses- 
sion, without  actual  delivery,  consistently  with  the  law  of 
bailments.^ 

evidence  submitted.  The  main  principle  has  been  discussed  in  various 
modern  cases  with  peculiar  reference  to  the  dangerous  practice  pursued 
by  banks  engaged  for  a  general  deposit  business,  of  taking  into  their  safes 
the  valuables  of  favored  individuals  for  their  mere  accommodation;  these 
valuables  being  commonly  contained  in  a  box  or  sealed  package.  The 
voluntary  act  of  a  bank's  executive  ofRcer  in  receiving  such  special  de- 
posit would  not,  as  sound  authorities  hold,  make  the  bank  per  se  liable ; 
and  still  less  would  that  of  some  subordinate  ;  but  if  such  deposit, 
exceptionally  or  customarily,  were  made  known  to  the  directors  or  manage- 
ment, their  acquiescence  so  as  to  bind  the  bank  as  bailee  may  be  estab- 
lished expressly  or  as  by  an  implied  sanction.  Foster  v.  Essex  Bank,  17 
Mass.  479  (a  leading  case)  ;  First  Xat.  Bank  v.  Graham,  79  Penn.  St.  106; 
Wiley  I'.  First  Nat.  Bank,  47  Vt.  546.  National  banks  are  forbidden  by 
act  of  Congress  to  take  special  deposits  gratuitously,  and  hence  the  issue 
of  ultra  vires  sometimes  raised.  The  Supreme  Court  of  the  United 
States  holds  a  national  bank  liable  in  such  cases.  National  Bank  c. 
Graham,  100  U.  S.  694;  Wylie  v.  Northampton  Bank,  119  U.  S.  361. 
Cf.  Third  Xat.  Bank  v.  Boyd,  44  Md.  47,  61  ;  First  Nat.  Bank  v.  Ocean 
Nat.  Bank,  60  N.  Y.  278 ;  Wiley  v.  First  Nat.  Bank,  47  Vt.  546.  Lat- 
terly the  business  of  safeguarding  money,  securities  and  valuables  has 
been  specially  developed  in  our  leading  cities  ;  so  that  the  former  dan- 
gerous custom  among  general  deposit  banks  has  been  greatly  diminished. 
See  Part  IV,  post. 

M  31.    . 

^  §32.  Ante,^.  The  bailor's  surrender  of  possession  upon  the  faith  of 
the  bailee's  undertaking  furnishes  a  contract  consideration  sufficient  to 


14  THE    LAW   OF   BAILMENTS 

21.  Privity  between  bailor  and  bailee  is  here  sufficient,  for 
the  bailment  to  take  due  effect;  the  bailor  need  not  himself 
be  owner ;  and  even  if  the  bailor's  delivery  were  wholly 
without  right,  the  bailment  would  take  full  effect,  sub- 
ject to  the  adverse  claims  of  third  parties  made  subse- 
quently upon  the  bailee,  so  long  as  the  latter  accepted  the 
thing  in  good  faith  and  without  intending  to  participate 
in  a  wrong. ^ 

22.  Whether  the  mere  contract  for  such  a  bailment  is  ac- 
tionable has  sometimes  been  considered.  We  are  always  to 
distinguish  between  the  contract  for  a  future  bailment  and 
the  bailment  itself,  which  latter  cannot  arise  without  receiving 
or  taking  possession  of  the  thing.  In  a  bailment  of  the  first 
class,  any  mere  contract  is  without  mutual  consideration  and 
the  intended  bailee  may  break  his  word  with  impunity,  even 
where  the  intended  bailor's  over-confidence  in  the  intended 
bailee's  word  has  put  him  to  special  damage.^  But  once 
becoming  voluntarily  a  bailee  of  this  class,  a  mutual  trust 
is  created,  and  the  bailee  is  bound  to  perform  his  undertaking 
with  at  least  slight  care  and  fidelity.^ 

23.  II.  Accomplishment  of  Bailment  Purpose.  The  requisite 
measure  of  care  and  diligence  on  the  bailee's  part  in  the  per- 
formance of  his  undertaking  is  the  most  important  principle 
discussed  in  the  courts  under  the  present  head.  Only  the 
lowest  degree  is  requisite,  as  shown  in  the  table  already 
presented ;  in  other  words,  the  bailee  must  use  slight  care 
and  diligence,  according  to  the  circumstances,  and  he  cannot 

support  even  a  gratuitous  bailment.  First  Nat.  Bank  v.  Ocean  Nat. 
Bank,  60  N.  Y.  278;  l^Lariner  v.  Smith,  5  Heisk.  (Tenn.)  203. 

1  §  33.  Taylor  o.  Plummer,  3  M.  &  S.  5G2  ;  Tancil  n.  Seaton,  28  Gratt. 
(Va.  )  001. 

^  §  34.  The  line  is  thus  drawn  between  non-feasance  and  niis-feasance 
by  the  bailee  in  such  cases.  Thorne  v.  Deas,  4  Johns.  (N.Y.)  84;  Elsee 
I'.  Gatward,  5  T.  R.  143.  If  T,  for  instance,  agree  to  convey  A.'s  valise 
to  town  the  next  day  without  recompense,  and  so  receive  it,  I  am  not 
justified  in  dropping  it,  or  handling  it  with  gross  negligence;  but  I  may 
refuse  to  receive  it  when  the  time  comes,  and  the  other  party  cannot  com- 
pel nor  sue  me  in  damages  for  breaking  m}'  promise. 

8  §  34.    And  see  ante,  20. 


BAILMENTS   FOR   BAILOR'S   SOLE   BENEFIT  15 

be  held  answerable  for  loss  or  injury  to  the  chattel,  unless 
grossly  negligent.^ 

24.  Slight  care  and  diligence  is  a  relative  term,  and  all  the 
circumstances  should  be  considered  by  the  trier  of  a  case,  to 
determine  as  a  question  of  fact  whether  on  the  whole  such 
a  decree  of  care  and  diliofence  has  been  bestowed  in  the 
particular  instance.^ 

25.  It  rests  peculiarly  upon  the  bailor  in  such  bailments  to 
scrutinize  the  bailee  of  his  own  selection ;  for  if  no  bailee 
without  reward  can  be  lawfully  required  to  bestow  the 
average  pains  upon  his  undertaking,  unless  expressly  agreeing 
so  to  do,  still  less  ought  the  bailor,  under  such  circumstances, 
to  expect  an  unskilful  man  to  perform  skilfully.^ 

26.  Other  so-called  standards  are  false  for  the  present  appli- 
cation ;  for  the  courts,  English  and  American,  fairly  harmonize 
at  the  present  day  in  applying,  for  their  own  or  for  a  jury's 
guidance,  the  test  alcove  stated.  But  other  standards  have 
sometimes  been  incorrectly  put  forward:  such  as;  (1)  That 
the  bailee  shall  exercise  towards  the  chattel  bailed  to  him 
the  same  diligence  that   he  exercises  towards  his  own  ;"*  or, 

^  §  35;  a)ite,6,  7.  A  glance  at  the  latest  cases  to  be  cited  presently 
for  illustration  will  show  adherence  to  this  rule.  "  Gross  negligence  in 
such  cases  is  nothing  more  than  a  failure  to  bestow  the  care  which 
the  property  in  its  situation  demands,"  and  wliether  there  is  such  negli- 
gence "  is  a  question  of  fact,"  for  the  jury  to  determine,  or  for  the  court, 
where  a  jury  is  waived.  Preston  v.  Prather,  137  U.  S.  GOi,  per  Mr. 
Justice  Field. 

2  §  37.  Thus  a  plough  might  be  kept  in  an  open  shed;  but  money  and 
valuables  received  on  deposit  ought  to  he  fastened  up.  A  load  of  brick 
might  be  left  exposed  to  the  weather,  but  not  a  load  of  furniture.  And 
■see  cases  cited  post,  which  illustrate. 

8  §  35.  Smith  v.  Meegan,  22  Mo.  150.  The  opportunities  afforded  the 
bailor  of  observing  the  general  fitness  of  the  person  whom  he  intrusts  with 
the  thing  are  to  be  considered ;  and  so,  too,  as  to  the  place  of  deposit 
intended.     Searle  v.  Laverick,  L.  R.  9  Q.  B.  122. 

*  §  36.  See  Doorman  r.  Jenkins,  2  Ad.  &  E.  256,  against  such  a 
criterion.  As  Judge  Story  has  suggested,  the  fact  that  one  keeps  the 
goods  as  his  own  affords  rather  a  presumption  than  a  test.  Story,  Bailm. 
§  64.  In  this  sense  such  an  excuse  may  be  of  some  service,  and  particu- 
larly in  vindicating  one's  honesty  in  the  bailment.     In  Tracy  v.  Wood, 


16  THE   LAW  OF  BAILMENTS 

(2)  That  the  bailee  is  only  liable  for  fraud  or  such  gross 
negligence  as  amounts  to  fraud.^ 

27.  All  the  circumstances  should  be  considered,  for  abstract 
care  or  diligence  is  not  to  be  contemplated  apart  from  the 
circumstances  present  in  the  case,  such  as  the  intrinsic  nature 
and  quality  of  the  thing  bailed,  and  the  reputed  habits  and 
character  of  the  bailee.^  And,  as  we  shall  presently  see, 
matters  of  custom,  mutual  knowledge  and  assent  or,  indeed, 
of  jiositive  agreement  avail,  within  the  usual  limits,  to  affect 
the  standard  we  have  stated,  which  is  always  presumable,  at 
least,  in  such  cases.^ 

28.  In  short,  the  conclusion  to  which  all  tests  of  duty  refer, 
is  what  the  parties  mutually  understood,  or  had  a  right 
to  infer  upon  all  the  facts,  subject,  of  course,  to  public 
policy.'* 

29.  Honesty  and  good  faith  are  requisite  here,  as  elsewhere, 

3  Mas.  (U.  S.  Cir.)  1-32,  a  man  lost  both  his  own  and  his  bailors 
valuables  by  an  act  of  gross  carelessness,  and  this  did  not  excuse 
him. 

1  See  dicta  in  L5i  Penn.  St.  296;  Job  v.  Job,  6  Ch.  D.  562  ("  wilful 
default  ").  The  true  Roman  expression  is  dolo  proxima  —  that  negligence 
which  comes  very  close  to  fraud. 

2  §  37.  8  /i. 

*  Nevertheless  slight  diligence  remains  the  presumable  and  fundamen- 
tal test.  For  the  evidence  of  mutual  understanding  in  bailments  like 
these  is  rarely  positive  ;  we  may  well  ascertain  whether  recompense  was 
or  was  not  to  be  claimed,  and  yet  rarely  would  the  gratuitous  bailee  in- 
dicate to  what  extent  he  meant  to  render  himself  liable,  or  his  bailor  do 
more  than  express  a  personal  confidence  in  his  fidelity  and  discretion. 
Human  experience  justifies,  in  this  state  of  things,  the  assumption  that 
the  bailee  meant  to  act  in  good  faith,  but  not  with  as  strict  advertence 
necessarily  as  though  he  had  been  hired  to  perform  the  transaction,  and 
that  the  bailor  assents  to  run  a  greater  personal  risk  because  the  accom- 
modation is  to  cost  him  nothing.  Once  more,  then,  does  mutual  silence 
and  the  want  of  an  express  understanding  necessitate  a  reference  to  gen- 
eral tests,  and,  in  fact,  to  a  relative  application  of  "  slight  diligence  "  to 
all  the  circumstances  and  incidents.      §  35. 

Such  a  bailment  can  hardly  demand  a  skilful  performance  in  any 
abstract  sense  ;  and  yet  the  exercise  of  a  profession  importing  skill  has  its 
bearing.  §  38 ;  2  Hawks  (N.  C),  115.  It  is  gross  carelessness  in  a  bank 
not  to  make  due  presentment  of  a  note  so  as  to  charge  indorsers.     §  40. 


BAILMENTS   FOR   BAILOR'S   SOLE   BENEFIT  17 

on  a  bailee's  part,  in  addition  to  the  requisite  degree  of  care 
and  diligence.^ 

30.  Liability  or  non-liability  of  the  bailee  is  illustrated  by  a 
number  of  simple  cases  decided  under  the  present  head.^ 

1  §  39.  The  civil  and  common  law  concur  on  this  point.  Gains  III. 
§  207;  2  Kent,  Com.  563  ;  Dunn  v.  Branner,  13  La.  An.  452.  And  see 
ante,  8. 

'^  §  40.  (1)  Bailee  pronounced  liable.  The  decisions,  English  and  Ameri- 
can, on  this  point,  start  off  with  our  leading  case  of  Coggs  r.  Bernard,  2 
Ld.  Raym.  909.  Here  one  who  was  to  have  nothing  for  his  service 
undertook  to  carry  several  hogsheads  (or  casks)  of  brandy  from  one 
cellar  to  another ;  he  did  tlie  work  so  badly  as  to  break  one  of  the  casks 
and  spill  its  contents,  and  for  this  loss  (upon  a  full  exposition  for  the  first 
time  of  the  law  applicable  to  such  cases)  he  was  adjudged  liable.  Follow- 
ing this  precedent,  Lord  Ellenborough,  in  1817,  j^ronounced  the  gratuitous 
bailee  of  another  person's  horse  grossly  negligent  and  liable,  for  turning 
the  animal,  after  dark,  into  an  unused  and  dangerous  pasture  to  which  it 
was  unaccustomed,  whereby  the  animal  received  hurt.  Rooth  ??.  Wilson, 
1  B.  &  Aid.  59.  But  cf.  6  Jones  (N.  C.)  532.  See  also  Doorman  v.  Jen- 
kins, 2  Ad.  &  E.  256  (1834).  VVhere  one  who  permits  a  prior  tenant's 
stove  to  remain  in  an  office  during  his  own  tenancy,  moves  it  arbitrarily 
into  an  open  lot,  thereby  exposing  it  to  injury,  he  comes  within  sucli  arule  ; 
for  he  should,  at  all  events,  have  terminated  the  license  to  remain  by 
reasonable  notice  to  his  predecessor.  Burk  v.  Dempster,  31  Neb.  426. 
And  see  70  Minn.  95.  Culpable  exposure  to  theft,  or  a  heedless  surrender 
to  some  third  person  may  render  one  liable.  1  Cold.  (Tenn.)  372.  For 
an  interesting  case  of  doubloons  carelessly  exposed  in  a  steamboat,  see 
Tracy  v.  Wood,  3  Mas.  (U.  S.  Cir.)  132. 

Sending  loose  money  through  the  mail  without  registering  the  letter 
may  render  one  liable,  where  such  transmission  is  grossly  careless  and 
unauthorized.  Jenkins  r.  Bacon,  111  Mass.  373.  And  see  Beardslee  v. 
Richardson,  11  Wend.  (N.  Y.)  25;  Stewart  v.  Frazier,  5  Ala.  114. 

(2)  Bailee  pronounced  not  liable.  While  a  bank  might  be  held  liable 
for  non-observance  of  the  familiar  presentment  of  a  note,  and  a  broker  for 
disregard  of  the  skill  usual  in  his  profession,  such  skill  will  not  be  exacted 
from  one  not  a  banker  nor  a  broker.  Eddy  v.  Livingston,  35  Mo.  4.S7. 
See  Shiells  r.  Blackburne,  1  II.  Bl.  158.  And  where  an  officer  in  custody 
of  trust  funds  serves  without  reward,  or  any  friend  carries  or  takes  care  of 
another's  chattels  gratuitously,  slight  diligence  on  his  part  is  sufficient  to 
shield  him  from  loss.  See  Bronnenburg  v.  Charman,  80  Ind.  475  ;  Scher- 
mer  i-.  Neurath,  54  Md.  491 ;  Caldwell  v.  Hall,  60  Miss.  330  (keeping  in 
a  safe  as  one  ke?ps  his  own  is  no  positive  test)  ;  Hibernian  Ass'n  o. 
McGrath,  154  Peun.  St.  296  ;  Spooner  v.  Mattoou,  40  Vt.  300  (comrades 
in  camp). 

2 


18  THE   LAW   OF  BAILMENTS 

31.  Gratuitous  special  deposit  at  a  bank  illustrates  the 
present  class  of  bailments,  besides  bringing  into  view  an  appli- 
cation of  the  law  of  agency  to  bailments  generally.^ 

^  §§  42-44.  The  most  numerous  and  important  cases  of  bailment  under 
the  present  head  relate  to  the  liability  of  banks  of  general  deposit  for 
special  deposits  (e.  g.,  boxes  of  money  or  valuables)  received  by  way  of 
bailment  without  the  expectation  of  reward.  And  here,  we  are  to  dis- 
tinguish, as  in  all  other  instances  of  service  or  agency,  three  important 
principles  of  the  law  :  (a)  That  every  service  or  agency  has  its  due  scope 
and  limits,  beyond  which  the  relation  fails  to  apply,  (b)  That  for  merely 
negligent  performance  on  the  servant's  or  agent's  part,  and  his  mis- 
feasance not  wilful,  generally,  in  the  course  and  usual  scope  of  his  employ- 
ment, the  master  or  principal  must  respond  to  third  persons  in  his  stead. 
(c)  But  that  while,  for  the  positively  wrongful  and  wanton  acts  of  a  ser- 
vant or  agent,  disconnected  with  his  business  and  the  usual  scope  of  his 
employment  (since  there  can  be  no  agency  to  commit  a  wilful  wrong), 
such  party  may  be  charged  by  others  as  a  wrongdoer,  his  master  or  prin- 
cipal shall  not  be  held  answerable  to  them,  unless  himself  contributing  to 
the  wrong,  as,  for  instance,  in  the  manner  of  employing  him.  And  the  gist 
of  liability  on  the  employer's  part  is  here,  that  he  was  himself  wilful  or 
wanton,  or  at  all  events  failed  materially  indue  care  and  diligence.  And 
see  ante,  9,  18. 

Foster  r.  Essex  Bank,  17  Mass.  479  (1821),  is  the  leading  authority  in 
point,  and  the  later  American  and  English  cases  have  followed  its  main 
distinctions  with  approval.  In  this  instance  the  bank  was  pronounced 
chargeable  as  a  bailee,  had  the  valuables  in  its  custody  disappeared 
through  the  gross  negligence  of  its  own  cashier;  but  here  it  was  in  fact 
exonerated,  inasmuch  as  the  thing  bailed  had  been  fraudulently  appro- 
priated by  its  cashier,  who  acted  without  the  scope  of  his  employment  in 
stealing  it,  like  any  stranger.  For  it  did  not  here  appear  that  the  bank 
directors  or  supervising  authority  showed  any  culpable  negligence  in 
employing  and  trusting  that  individual. 

In  a  later  Massachusetts  case  the  same  distinctions  were  applied  where 
a  special  deposit  had  disappeared  from  bank  vaults.  The  court  announced 
that,  in  order  to  charge  the  liank,  a  gratuitous  bailee,  with  such  loss,  gross 
carelessness  on  the  part  of  the  corporation,  in  some  respect  affecting  the 
custody  or  occasioning  the  loss,  must  be  shown  ;  and  further  that  such 
gross  carelessness  should  be  evinced  by  such  circumstances  as  the  want  of 
a  suitable  place  or  of  proper  precautions  taken  in  guarding  the  deposit, 
or,  as  to  those  employed  by  the  bank  and  concerned  in  the  affair,  negli- 
gence in  selecting  men  or  in  failing  to  discharge  them  after  receiving 
notice  of  their  unfitness.  Smith  v.  First  Nat.  Bank,  99  Mass.  605,  611, 
per  Wells  J. 

For  other  siuular  cases  which  pursue  sucli  distinctions,  see  Giblin  v. 


BAILMENTS  FOR  BAILOR'S  SOLE  BENEFIT  19 

32.  Miscellaneous  illustrations  are  supplied  ill  various  bail- 
ments which  arise  not  strictly  upon  a  contract,  or,  at  least,  upon 
a  relation  of  taking  into  custody  under  peculiar  circumstances 
which  infer  rather  than  express  a  bailment  undertaking.^  But 
here,  as  in  other  cases,  it  should  be  noted  that  the  bailment 
created  may  be  upon  mutual  inducement,  rather  than  gratui- 
tous, and  hence,  for  its  standard  of  liability,  should  be  referred 
to  our  third  class.^ 

McMullen,  L.  R.  2  P.  C.  317  (the  cashier  stole)  ;  Scott  v.  Xat.  Bank  of 
Chester  Valley,  72  Penn.  St.  -471,  479  (absconding  teller  who  had  operated 
in  stocks  and  kept  false  accounts,  and  yet  gross  negligence  in  not  remov- 
ing hini  had  not  been  shown)  ;  First  Xat.  Bank  v.  Ocean  Nat.  Bank,  GO 
X.  Y.  278.  Yet  actual  knowledge  that  the  cashier  or  teller  engages  in 
fraudulent  or  dishonorable  practices,  that  he  gambles,  speculates,  lives 
beyond  his  evident  means,  frequents  disreputable  houses,  or  carries  ou 
outside  money  operations  which  his  situation  and  fortune  do  not  warrant, 
ought  to  put  the  directors  upon  the  alert  lest  they  make  themselves  or  the 
bank  strictly  answerable  toothersfor  the  fruits  of  his  misconduct.  Gray 
r.  ]\lGrriara,  U8  111.  179  ;  Preston  v.  Prather,  lo7  U.  S.  604.  Slight  dili- 
gence or  even  more  towards  a  valuable  gratuitous  deposit  may  be  exer- 
cised by  keeping  it  in  a  safe,  without  giving  the  further  safeguard  of  an 
inner  compartment  used  for  the  bank's  similar  valuables.  Griffith  v. 
Zipperwick,  28  Ohio  St.  388.  The  distinction  between  such  bailments 
and  those  for  hire  in  respect  of  the  standard  of  diligence  will  further 
appear  under  Part  IV.  Culpable  carelessness  may  appear  in  failing  to 
take  steps  to  recover  the  stolen  property.  Wylie  v.  Korthamjiton  Bank, 
119  U.  S.  301.  As  to  giving  up  tlie  special  deposit  to  one  fraudulently 
assuming  to  be  entitled,  cf.  62  Penn.  St  47;  81  Penn.  St.  47. 

^  §  45.  In  the  case  of  a  finder  on  land,  the  bailee  is  chargeable  simply 
for  gross  negligence  and  fraud,  where  no  reward  was  offered.  And  we 
should  bear  in  mind  that  one  who  sees  a  pocket-book  or  other  thing  lying 
about  and  apparently  lost,  may  pass  it  by  and  become  no  bailee  at  all; 
but  if  he  picks  it  up  and  takes  it  in  custody,  the  rights  and  liabilities  of  a 
bailee  attacli  to  him.  See  ante,  3,  16  ;  Bobo  v.  Patton,  6  Ileisk.  (Tenn.) 
172  ;  4  Esp.  165.  And  as  to  an  attaching  officer  and  those  he  employs, 
see  Blake  v.  Kimball,  106  Mass.  115;  ante,  16. 

2  See  ante,  17  ;  Part  IV,  post. 

Several  recent  cases,  English  and  American,  discuss  the  constructive 
custody  which  may  arise  where  a  patron  on  certain  premises  uses  facili- 
ties specially  i)rovided  for  his  convenience,  and  in  some  such  cases  a  bail- 
ment relation,  with  or  without  recompense,  fairly  exists.  See  141  Mass. 
561  (trying  on  a  new  suit  of  clothes  and  leaving  garments  in  a  dressing 


20  THE   LAW  OF  BAILMENTS 

33.  Inevitable  accident  excuses  and  so,  too,  does  any  occa- 
sion of  loss  which  imputes  no  gross  negligence  or  bad  faith  to 
the  bailee  of  the  present  class.^ 

34.  As  to  liability  for  the  contents  of  a  closed  receptacle,  such 
as  a  box  or  trunk,  the  liability,  here  as  elsewhere,  should  be 
according  to  what  the  bailee  had  fair  reason  to  suppose  the 
receptacle  contained ;  and  while  in  one  instance  the  bailee  may 
have  been  left  in  ignorance,  or  else  misled  by  appearances  or 
his  bailor's  representations,  in  another,  he  is  found  fully 
apprised  as  to  the  contents  or  left  free  to  infer  for  himself.^ 

35.  On  the  whole,  then,  the  bailee's  liability  in  bailments 
under  the  present  head,  must  be,  apart  from  special  contract 
modifications,  such  a  degree  of  diligence,  less  than  what  the 
avei-acre  of  mankind  under  the  same  conditions  and  circum- 
stances  are  wont  to  exert  with  reference  to  similar  property, 
as  may  be  relatively  termed  slight  diligence  ;  that,  correspond- 
ingly^, he  is  liable  only  for  what  the  law  terms  great  or  gross 
negligence ;  and  that,  of  course,  for  dishonesty  and  bad  faith 
in  performing  the  transaction,  lie  becomes,  as  a  matter  of 
course,  liable.  But  it  is  here  essential  that  the  bailment  be 
undertaken  gratuitously  and  without  the  expectation  of 
reward.^ 

closet) ;  Ultzen  v.  Nicols  (1894),  1  Q.  B.  92  (hanging  up  one's  overcoat  in  a 
restaurant).  And  see  Ilillis  v.  Chicago  11.,  72  Towa,  228.  A  mutual 
consideration  or  inducement  is  usually  said  to  exist  here.  See  further, 
Tart  IV.  pust. 

1  §47.  Inevitable  accident^  e.  (7.,  lightning,  shipwreck,  or  sudden 
death  —  may  excuse  all  three  classes  of  bailees  where  such  was  the  direct 
and  proximate  cause  of  loss.  And  so  is  it  with  irresistible  human  force, 
such  as  the  invasion  of  an  army,  highway  robbery,  or  piracy.  Stress  of 
the  law  excuses.  Biddle  v.  Bond,  34  L.  J.  Q.  B.  137;  7  Cow.  278.  Or 
loss  by  accidental  fire.  Ilobson  v.  Woolfolk,  23  La.  An.  384.  Or  loss  by 
burglary  or  stealing,  without  the  bailee's  fault.  Danville  Bank  v. 
"Waddill,  31  Gratt  (Va.)  409.  But  in  all  such  cases  we  assume  that  the 
l>ailee  did  not  bring  on  tlie  loss  or  injury  or  fail  to  forfend  consequences 
by  his  own  culpable  carelessness  or  bad  faith. 

-  §  48.     2  Ld.  Raym.  914  ;  2  Kent,  Com.  5G1. 

3  §  49.  As  to  the  exercise  of  skill,  a  gratuitous  bailment  can  rarely 
demand  what,  in  the  abstract,  is  termed  skilful  performance,  and  yet 
the   bailee's   responsibility  in    class   pursuits   should  be  tested  by  class 


BAILMENTS  FOR   BAILOR'S   SOLE   BENEFIT  21 

36.  But  special  contract  may  modify,  not  onl}^  in  respect  of 
the  standard  of  care  and  diligence  to  be  here  bestowed,  but  in 
other  particulars  of  bailment  performance.^  Public  policy,' 
however,  intervenes,  as  it  does  in  all  other  bailments,  to  put 
bounds  to  the  right  of  private  arrangement;  and  this  princi- 
ple, which  has  sometimes  been  overlooked  by  the  courts,  per- 
meates the  fiduciary  relation  which  a  bailment  creates.^ 

37.  Other  mutual  rights  and  duties  are  sometimes  considered 
in  the  present  connection;  the  right  to  use  or  appropriate, 
for  instance.  There  can,  strictly  speaking,  be  no  substantially 
beneficial  use  by  the  bailee  in  transactions  of  the  present 
kind ;  since,  in  such  a  case,  the  bailment  would  come  under 
the  third  class.  And  if  by  special  agreement  there  is  an 
option  to  sell  and  share  the  profits  or  an  option  to  bu}^  or  make 
beneficial  use,  the  bailment  continues  gratuitous  only  until 

rather  than  individual  comparison ;  and  where  the  exercise  of  one's 
profession  implies  skill,  the  want  of  that  skill  may  be  imputed  as  gross 
negligence.  §§  38,  46.  Thus,  bankers  have  the  better  facilities  for 
keeping  money  and  valuables ;  agistors,  for  keeping  cattle.  A  banker, 
e.  g.,  becomes  familiar  with  the  routine  of  presenting  a  note  on  maturity, 
so  as  to  charge  an  indorser  in  case  of  the  maker's  default. 

^  §  51.  It  is  this  undertow  of  a  mutual  understanding,  founded  on 
custom  or  an  implied  contract,  which  so  often  baffles  the  operation  of 
general  principles  in  the  case ;  for  it  is  always  material  to  know  what  the 
parties  expressly  intended  or  were  presumed  to  intend.  Thus,  the  bailor 
may  become  affected  by  the  understanding  that  the  tiung  was  to  be  kept 
in  a  certain  place  of  whose  security  and  fitness  he  had  full  opportunity  to 
judge  for  himself. 

^  §  51.  The  universal  limitation  applies  to  a  bailment,  that  the  bailee 
shall  not  stipulate  against  responsibility  for  his  own  fraud  and  wilful 
misconduct  ;  and  it  is  further  held  that  public  policy  will  not  permit  even 
a  gratuitous  bailee  to  procure  absolute  immunity  from  the  consequences 
of  his  gross  negligence.  Pattison  v.  Syracuse  Nat.  Bank,  4  Thomp.  & 
C.  (N.  Y.)  96.  But  if  the  gratuitous  bailee  is  foolish  enough  to  insure 
safety,  or  enhance  the  risks  on  his  own  part,  public  policy  will  not  relieve 
him  from  the  consequences.     Clark  r.  Gaylord,  24  Conn.  484. 

Within  such  limits  of  policy,  whatever  special  directions  accompanied 
the  bailment  delivery  should  be  followed  ;  and  the  bailee's  special  terms 
of  acceptance  bind  him  and  his  bailor  alike.  Smith  v.  Library  Board, 
.58  Minn.  108;  3  Fla.  27;  5  Ala.  114;  8  B.  Mon.  (Ky.)  41G.  But  a  fair  con- 
struction should  be  put  upon  doubtful  words  and  phrases,  such  as  the 


22  THE   LAW   OF   BAILMENTS 

the  option  is  exercised.^  Appropriation,  in  any  nnpermitted 
sense,  constitutes  misappropriation ;  and  for  any  misappropri- 
ation the  bailee  is  answerable  as  for  conversion.^ 

38.  A  right  to  incur  reasonable  expense  about  the  thing 
bailed  may  be  presumed  to  exist,  for  its  due  care  and  pres- 
ervation, and  the  owner  or  bailor  may  fairly  be  held  bound  to 
a  corresponding  indemnity  by  the  bailee.^ 

39.  As  concerns  third  persons  and  the  bailment  rights  and 
duties,  every  bailee,  and  even  one  without  reward,  precarious 
and  incomplete  as  may  be  his  own  title,  has  an  interest  suf- 
ficiently great  to  enable  him  to  sue  others,  whether  tortwise 
or  as  for  breach  of  some  contract  privity  with  him.*  But  if 
the  bailee  has  a  right  to  sue  in  full  damages  any  third  party 
who  molests  or  interferes  with  his  possession,  so,  too,  has 
the  bailor  himself ;  and  whichever  of  the  two  first  sues  and 
recovers  the  damages  bars  a  similar  action  by  the  other,^ 

promise  to  keep  "safely'  or  "securely,"  and  the  modern  inclination  is 
to  regard  such  expressions  as  meaning  no  more  than  to  fulfil  the  legal 
measure  of  one's  duty.  Cf.  2  Ld.  Raym.  909,  913;  Whitney  v.  Lee,  8  Met. 
(Mass.)  91;  Ross  v.  Hill,  2  C.  B.  877. 

1  §  52.  60  Miss.  332. 

2  Selling,  pledging,  or  giving  away  the  thing  as  one's  own  is,  of 
course,  a  misappropriation  and  wrongful.  See  King  c.  Bates,  57  N.  PL 
446  ;    7  Daly  (N.  Y.),  45. 

^  §  53.  But  while  the  common  law  never  presumes  that  a  gratuitous 
undertaking  was  designed  for  burdening  the  bailee  with  expense,  it 
does  not  clearly  define  the  extent  to  which  the  bailor  may  incur  expense 
upon  the  thing,  or  expose  it  to  liens  created  by  him;  and  hence  the  bailee 
ought,  if  possible,  to  secure  his  bailor's  sanction  to  expenses.  See  Deval- 
court  r.  Dillon,  12  La.  Ann.  072;  ILirter  v.  Blanchard,  64  Barb.  (N.  Y.)  617. 

*  §  54  Shaw  ('.  Kaler,  IOj  Mass.  448.  Even  a  mere  finder  has  such  a 
right.  2  Taunt.  302.  Whether  trover  (arising  out  of  "a  special  prop- 
erty "  in  the  thing)  is  maintainable  by  a  bailee  without  reward,  rather  than 
trespass,  has  sometimes  been  controverted  :  but  the  weight  of  authority 
seems  to  sanction  such  a  suit,  and  our  modern  practice  acts  dispense 
largely  with  such  nice  distinctions.  Cf.  Story,  Bailm.  §  133;  121  Mass. 
209;  13  N.  IL  49t;  13  Vt.  501;  2  Kent,  Com.  568  n. 

^  §  54.  See  rjilJette  v.  (ioodspeed,  69  Conn.  303.  In  various  instances 
the  bailor  or  owner  might  fairly  intervene  in  the  suit  for  his  own 
protection,  and  have  the  fund  secured  to  himself.  And  see  Part  III, 
post.     Harrington  v.  King,  121  Mass.  209. 


BAILMENTS   FOR   BAILOR'S   SOLE    BENEFIT  23 

40.  III.  Termination  of  the  Bailment.  A  bailment  of  this 
class  may  be  terminated  in  a  "variety  of  ways,  according  to  cir- 
cumstances and  the  fair  intent  of  the  relation. ^  In  general 
(and  this  holds  particularly  true  of  gratuitous  custody  for  a 
time  uncertain)  this  bailment  is  sufficiently  accomplished 
whenever  eitlier  party,  upon  giving  due  notice  and  opportu- 
nity, sees  fit  to  put  an  end  to  it.^  And  mutual  consent  may,  of 
course,  put  an  end  to  the  gratuitous  relation,  whether  by  ter- 
minating it  or  by  substituting  some  other  undertaking  towards 
the  thing.3 

41.  The  bailor's  demand,  by  putting  a  decisive  end  to  the 
bailment,  whose  limits  were  not  definitely  prearranged,  obliges 
the  bailee  to  give  up  the  thing  or  else  account  for  it.* 

42.  Redelivery  or  delivery  over  should  be  of  the  thing  in  its 
then  existing  condition  ;  but  if  destroyed,  injured,  or  spoiled, 
the  bailee  is  responsible  in  damages  so  far  only  as  his  bad  faith, 

1  §§  55,  56. 

^  lb.  Unless  the  formality  of  a  demand  would  be  nugatory  on  his 
part,  the  bailor  should  make  it.  See  5  Ala.  114;  8  Ga.  178;  2  E.  D. 
Smith  (N.  y.),  60 ;  21  Vt.  558.  But  where  something  precise  was  to  be 
accomplished,  such  as  carrying  the  thing  to  a  particular  place,  or  perform- 
ing a  certain  work  upon  it,  the  bailee  cannot  divest  himself  of  liis  trust  at 
pleasure,  but  must  go  on  and  perform  his  self-imposed  task  with  at  least 
good  faith  and  slight  diligence  ;  and  so  is  it  in  bailments  for  custody  for 
a  fixed  period.     See  ante,  22. 

3  See  Howard  v.  Roeben,  33  Cal.  399  ;  Chiles  v.  Garrison,  32  ]\Io. 
475. 

Notice,  given  by  the  bailee  to  take  away,  may,  if  disregarded  by  his 
bailor,  justify  the  bailee  in  putting  the  thing  off  his  premises,  where  the 
undertaking  was  precarious  and  not  for  a  time  certain.  See  2  E.  D.  Smith 
(N.  Y.),  60.  But  the  bailment  fiduciary  should  still  act  with  honor;  and 
even  in  such  a  case  he  is  hardly  justified  in  selling  the  property,  as  for  his 
own  charges  upon  further  storage,  but  should  rather  turn  it  over  to  some 
third  party  to  store  or  sell  for  his  own  reimbursement  against  the  bailor. 
7  Daly  (N.  Y.),  45. 

*  §  56.  If  the  bailee  misappropriates  the  thing,  as  by  selling  or 
pledging  it  as  his  own,  the  bailor  may  treat  the  bailment  as  virtually 
ended,  and  bring  trover  for  repossession ;  yet  he  may  elect,  instead,  to 
treat  the  bailment  as  continuing  and  sue  for  damages.  See  Crump  v. 
Mitchell,  34  Miss.  449;  King  v.  Bates,  57  N.  H.  446  ;  Wilkinson  v.  Verity, 
L.  R.  6  C.  P.  206. 


24  THE   LAW   OF   BAILMENTS 

or  Avhat  the  law  terms  the  failure  to  exercise  slight  diligence, 
caused  the  mischief.^ 

43.  A  stakeholder,  or  one  who  holds  as  under  a  sort  of 
sequestration,  must  needs  assume  a  certain  responsibility  for 
ascertaining  to  whom  he  should  make  delivery ;  and  in  various 
instances  discretion  must  be  exercised  by  the  bailee  as  to  the 
party  entitled  to  receive  the  thing  from  him  ultimately,  under 
the  terms  of  his  undertaking.^ 

44.  Wherever  adverse  claims  of  title  are  made,  the  bailee 
may  either  take  his  own  risk  as  to  what  delivery  on  his  part  is 
rightful,  either  with  or  without  the  security  of  a  bond  of  in- 
demnity ;  or,  in  matters  of  sufficient  importance,  he  may  inter- 
plead the  claimants  in  equity  and  leave  th«  court  to  adjust  the 
issue.^ 

45.  The  effect  of  death  or  revocation  upon  a  bailment  without 
reward,  whether  that  of  bailee  or  bailor,  is  sometimes  con- 
sidered.* 

1  §  57.  All  profit  and  increase  derived  from  the  thing  ought  also  to 
be  delivered  up  or  accounted  for.     Ih.  ;  2  Ld.  Raym.  909. 

-  §  58.  See  Carle  v.  Bearce,  33  Me.  337  ;  State  v.  Fitzpatrick,  64  IMo. 
185;  Trefftz  v.  Canelli,  L.  R.  4  P.  C.  277.  A  finder,  or  an  attaching 
officer  or  clerk  of  court,  might  come  under  this  head  where  the  bailment 
was  without  reward.  But  see  Part  IV,  yjo>s^/.  The  courts  are  indisposed 
to  extend,  by  mere  inference,  the  perils  of  an  unprofitable  trust. 

As  to  a  misdelivery  cunningly  induced  and  not  grossly  careless  or 
wanton,  see  Metzger  v.  Franklin  Bank,  119  Ind.  359;  Hubbell  v.  Blandy, 
87  Mich.  209.  Or  where  the  bailor  or  his  agent  misled.  Brant  v. 
McMahon,  56  Mich.  498. 

For  a  misdelivery  amounting  to  conversion,  see  Hubbell  v.  Blandy, 
87  Mich.  209. 

3  §60.  And  see  ante,  11.  See  also  Cook  v.  Holt,  48  N.  Y.  275; 
Magdeburg  r.  Uihlein,  53  Wis.  165.  Actual  delivery  back  or  over,  in 
accordance  with  one's  undertaking,  and  without  adverse  notice,  will 
doubtless  clear  the  bailee.  17  Ala.  216;  34  La.  An.  1138.  And  he 
should  never  volunteer  a  dispute  of  his  bailor's  title.  53  Wis.  165, 
supra. 

*  §§  69,  61.  Revocation  of  an  agency  follows  the  usual  rule.  See 
ante,  9.  But  bailment  undertakings  stand  not  on  the  strict  footing  of 
an  agency,  as  to  revocation  by  death  of  one's  bailor.  See  Story, 
Agency,  §§  488-490.  Upon  death  of  a  bailee,  nothing  but  the  bailee's 
possible  lien  for  reimbursement  or  jus  tertii  can  obstruct  the  bailor  iu 


BAILMENTS   FOR   BAILOR'S   SOLE   BENEFIT  25 

46.  As  to  the  place  of  delivering  back  or  over  the  apparent 
understanding  of  the  parties,  their  situation  and  circumstances, 
and  the  cliaracter  of  the  thing,  must  mainly  determine..  Such 
is  the  general  rule  of  baihnents  ;  and  in  a  bailment  of  this  class, 
the  bailee  ought  to  be  given  the  least  possible  trouble  consist- 
ent with  his  actual  undertaking.^ 

46  a.  The  duty  of  rendering  an  account  is  considered  by  the 
civilians  in  connection  with  bailments  ;  but  accomit,  under  the 
present  head,  could  scarcely  be  more  than  the  bailee's  report 
of  what  he  had  done,  with .  a  statement  of  expenses,  if  any 
were  incurred.^  But  assuredly,  if  the  thing  be  not  forth- 
coming when  the  bailment  is  terminated,  or  if  it  be  produced 
in  a  damaged  state,  such  as  presumably  must  have  been  caused 
by  his  own  fault,  the  duty  arises  of  giving  a  satisfactory 
account,  or,  in  other  words,  of  exonerating  himself  at  the  law, 
or  else  indemnifying  his  bailor  in  damages.^ 

recovering  his   property    from   the   bailee's    personal    representative    or 
other  tliird  person.     Smiley  v.  Allen,  13  Allen  (Mass.),  405. 
As  to  a  bailment,  joint  or  common,  see  §  62. 

1  §  63.  For  a  mere  gratuitous  custody,  the  place  of  deposit  is  pre- 
sumably the  place  of  final  surrender.  But  wherever  the  place  of 
redelivery  or  delivery  over  was  prearranged  by  mutual  contract,  that 
contract  shall  be  decisive  of  the  matter.  See  2  E.  D.  Smith  (N.  Y.), 
60. 

2  §  64.  Whether  such  account  is  requisite  at  all  should  depend 
upon  the  particular  circumstances  of  the  undertaking ;  and  the  final 
redelivery  or  delivery  over  of  the  thing  in  suitable  condition  and  after 
a  suitable  manner  ought  usually  to  suffice  wherever  a  bailee  has  per- 
formed a  simple  undertaking  without  reward,     lb. 

^  §  64.  And  see,  ante,  12,  generally,  as  to  burden  of  proof  and  excul- 
pation or  exoneration.     See  also  Graves  v.  Ticknor,  (j  N.  H.  537. 

It  follows  from  our  general  course  of  investigation  that  the  bailee 
who  has  fully  and  in  good  faith  accounted  to  his  bailor,  cannot  be 
held  responsible  by  third  persons  of  whose  adverse  claims  he  was  not 
previou.sly  notified.     Dickson  i\  Chaffe,  34  La.  An.  1133;  an^e,  44. 

The  reader  will  bear  in  mind  that  redelivery  or  delivery  over  is  not 
always  the  intended  termination  of  a  bailment  (as,  e.g.,  where  the  bailee 
may  become  full  owner).     Ante,Z,^. 


PART  III. 
BAILMENTS   FOR   THE   BAILEE'S    SOLE  BENEFIT. 


GRATUITOUS  LOAN  FOR  USE. 

47.  This  next  class  of  bailments  resembles  the  preceding  in 
its  one-sicledness  of  recompense ;  whence  some  have  reckoned 
both  under  the  single  denomination  of  gratuitous  bailments. 
Familiar  as  this  transaction  must  be  in  daily  life,  very  few 
English  or  American  decisions  are  found,  and  our  guide  must 
be  common  sense  and  tlie  analogies  available.  To  all  prac- 
tical intent,  every  bailment  for  the  bailee's  sole  benefit  is  a 
loan  for  use ;  and  accordingly  we  may  define  the  bailment 
as  one  for  the  temporary  beneficial  use,  gratis,  of  a  chattel 
wliich  the  borrower  must  afterwards  return.^ 

48.  Under  three  heads,  elsewhere  employed,  the  bailment 
by  Avay  of  gratuitous  loan  for  use  may  be  discussed.  I. 
Matters  preliminaiy,  including  delivery  in  bailment.  II,  Ac- 
complishment of  the  bailment  purpose.  III.  Termination  of 
the  bailment. 

49.  I.  Matters  Preliminary.  As  to  mutuality,  such  a  bailment 
could  scarcely  arise  apart  from  some  contract  relation  ;    and  a 

^  §§  65,  66.  The  Roman  jurisprudence,  with  more  exactness  than  our  own, 
has  styled  this  loan  Commodatum,  to  distinguish  it  from  that  other  loan, 
Alutuwn,  where  the  borrower  or  hii'er  was  bound  to  redeliver,  not  the 
specific  thing  furnished  him,  but,  at  his  option,  some  other  of  the  same 
kind.  JMutuum,  at  the  conmion  law,  is,  as  we  have  seen,  a  sale  of 
equivalents  and  no  bailment  at  all.  Yet,  in  popular  English  speech, 
we  blend  the  two  Roman  meanings  when  we  speak  of  "  a  loan  "  and 
"  lending  ;  "  and  could  some  such  word  as  "  commodate  "  be  contrived  in 
the  present  connection,  our  legal  vocabulary  would  be  more  exact. 

Yet  there  may  be  a  present  lending  with  an  option  in  the  borrower 
to  purchase  hereafter.     Whitehead  v.  Vanderbilt,  10  Daly  (N.  Y.),  214. 


{ 


GRATUITOUS  LOAN  FOR  USE  27 

contract  relation  presumes  competent  parties  and  a  free 
mutual  assent.  No  loan  so  called  can  prevail  against  an 
unwilling  owner  from  whom  the  thing  was  forcefully  or 
fraudulently  taken,  nor,  of  course,  where  it  was  taken  without 
his  knowledge.^ 

50.  The  subject-matter  of  a  bailment  loan  for  use  consists 
in  articles  to  be  returned  or  delivered  over,  in  specie,  and 
not,  in  a  loan  or  commodate,  where  only  an  equivalent  is 
to  be  rendered  in  return. ^ 

51.  As  to  the  period  of  loan,  it  would  appear  that  the 
distinction  between  a  loan  for  a  fixed  and  for  an  uncertain 
time  is  of  legal  importance.^  But  the  binding  force  of  a 
contract  to  loan  dates  only  from  delivery,  as  in  other  gratui- 
tous bailments.* 

^  §  68.  In  such  a  case  the  pretended  borrower  is  not  only  without  the 
rights  of  a  bailee,  but  may,  if  he  meant  to  appropriate,  be  indicted  for 
larceny  besides.  State  v.  Bryant,  74  N.  C.  12t.  See  further,  Hagebush  t\ 
Ragland,  78  111.  41. 

2  §  69.  See  an/e,  47,  and  ??.  A  loan  of  things  consumable  in  use,  like 
wine,  corn,  or  money,  cannot  in  strictness  be  made,  if  that  use  consists  in 
the  consumption;  and  indeed  such  a  transaction  may  be  presumed  an 
outright  gift,  or,  if  a  consideration  intervened,  a  sale  of  the  thing.  Yet 
the  loan  of  a  consumable  thing,  not  for  consumption,  but  by  way  of 
commodate  is  possible ;  as  in  the  loan  of  such  articles  to  make  a  show, 
to  ornament,  or  to  enhance  a  friend's  credit.  See  Archer  v.  ■^^'alker, 
38  Ind.  472.  Whatever  the  character  of  the  use,  our  bailment  confers 
the  right  to  use  only  as  the  borrower  and  lender  mutually  intended, 
expressly  or  by  implication. 

8  §  70.  The  Roman  civilians  carefully  distinguished  between  the  two 
sorts :  a  loan  with  some  definite  period  fixed  in  advance,  and  the 
p7-ecariuin,  which  was  for  a  time  indefinite,  or  no  longer  than  the  lender 
chose  to  permit.  In  Story,  Bailm.  §§  253,  258,  277,  it  is  laid  down  that 
every  loan  for  use  is  understood,  at  common  law,  to  be  so  strictly  precari- 
ous that  the  lender  may  terminate  it  whenever  he  pleases;  but  this  may 
be  doubted,  in  advance  of  actual  decision  by  the  courts.     See  next  note. 

*  §  71.  It  has  been  seen  (ante,  22)  that  a  gratuitous  bailment,  resting 
in  mere  contract,  is  not  enforceable  or  actionable,  inasmuch  as  the 
contract  is  without  consideration  ;  but  that,  after  delivery  has  taken 
place,  the  bailment  itself  affords  sufficient  mutuality  for  requiring  the 
fiduciary  undertaking,  when  definite,  to  be  carried  out  as  agreed  upon. 
To  this  extent  the  disadvantage  which  one  party  would  sustain  by  the 


28  THE   LAW   OF   BAILMENTS 

52.  II.   Accomplishment  of  Bailment  Purpose.  Great  diligence 

is  required  ill  bailments  of  the  present  class,  conversely  to  bail- 
ments of  the  first  class,  already  considered.  The  bailee  is 
bound  to  exercise  what  is  called  great,  or  more  than  ordinary 
diligence,  and  to  respond  for  every  loss  which  is  caused  by 
even  slight  negligence  on  his  part.^ 

53.  Good  faith  is  also  requisite,  as  in  all  bailments.  Hence 
the  mutual  understanding,  or  the  extent  of  the  bailor's  license 
to  use,  should  here  be  considered ;  for  where  the  loan  was 
strictly  personal  the  bailee  may  not  admit  others  inconsistently 
to  the  use ;  and  where  the  loan  was  for  a  particular  time  or 
purpose,  the  bailee  who  deviates  essentially  in  such  respects, 
becomes  absolutely  liable  for  the  thing,  and  may  be  treated 
otherwise  as  a  wrong-doer.^ 

54.  What  is  excusable  or  inexcusable  loss  or  injury  will 
depend  upon  the  circumstances  of  each  case,  using  our  stan- 

other's  non-performance  receives  indulgence.  Why,  then,  should  not  a 
corresponding  indulgence  be  allowed  a  borrower,  where  the  lender  agreed 
that  he  should  have  the  thing  for  a  fixed  definite  period,  and  delivery 
was  made  accordingly? 

Says  Coleridge,  J.\  in  Blakemore  v.  Bristol  R.,  8  El.  &  Bl.  108.5,  1050: 
"It  is  surprising  how  little  in  the  way  of  decision  in  our  courts  is  to  be 
found  in  our  books,  upon  tiie  obligations  which  the  mere  lender  of  a 
chattel  for  use  contracts  towards  the  borrower.  ...  It  may,  however, 
we  think,  be  safely  laid  down,  that  the  duties  of  the  borrower  and 
lender  are  in  some  degree  correlative."  See  also  Clapp  v.  Nelson,  12 
Tex.  370. 

^  §  72.  And  see  nnfe,  6,  7.  The  Roman  law  emphasized  this  duty  as 
exactissima  diiujentia,  or  the  highest  degree  known.  And  see  Lord  Ilolt  in 
Coggs  V.  Bernard,  2  Ld.  Raym.  909,  915.  Such  diligence  as  one  more 
than  ordinarily  careful  would  bestow  upon  such  property,  or  manifest 
under  like  circumstances,  appears  the  criterion  here.  See  3  Bing.  N.  C. 
475;  Beller  v.  Schuitz,  44  Mich.  529. 

2  §  73.  And  see  ante,  8, 29.  See  31  Ark.  518  ;  CuUen  v.  Lord,  39  Iowa, 
302;  17  N.  Y.  Supr.  474;  Lane  v.  Cameron,  38  Wis.  603. 

In  general,  for  attempting  to  sell,  pledge,  give  away,  or  otherwise 
misappropriate  the  thing,  a  borrower,  like  all  other  bailees,  is  answerable 
as  a  wrong-doer.  Crump  r.  Mitchell,  34  Miss.  449;  McMahon  i'.  Sloan, 
12  Penn.  St.  229.  As  to  deviating  from  the  permitted  purpose,  see  41  Fed. 
(U.  S.)  152  (borrower  of  a  barge). 


I 


GRATUITOUS  LOAN  FOR  USE  29 

darcl  and  the  general  rules  as  to  evidence  and   burden   of 
proof  whicli  apply  to  bailments.^ 

55.  False  standards  of  liability  or  non-liability  in  such  bail- 
ments should  be  avoided.  Thus,  the  exercise  of  more  dil- 
igence than  to  one's  own  goods,  is  not  a  test;  but  the 
question  is  simpl}^  one  of  good  faith  and  the  exercise  of  great 
diligence  under  all  the  circumstances.^ 

56.  Where  loss  or  injury  is  occasioned  by  third  persons,  the 
borrower's  responsibility  depends  usually  upon  the  issue  of 
his  wilful  or  slightly  careless  participation  therein,^  But  for 
damage  occasioned  by  the  borrower's  own  agent,  or  by  one 
whom  the  borrower,  with  the  lender's  permission,  let  into  the 
use  of  the  thing,  the  usual  principles  of  agency  should  apply.* 

57.  Bailment  may  be  affected  by  special  contract  as  in  other 

^  §  74.  Here,  as  in  all  other  bailments,  we  consider  the  direct  and 
proximate  cause  of  loss  or  injury;  whether  due  to  the  irresistible  disaster 
or  stress  set  up  m  excuse  by  the  borrower,  or  to  the  want  of  great  dili- 
gence on  his  own  part.  Thus  would  it  be,  where  act  of  God  intervened  ; 
or  a  fire  ;  or  death  and  spoliation;  or  robbery  or  burglary,  etc.  It  may  be  in- 
cumbent upon  the  bailee,  in  case  of  theft  or  other  loss,  to  make  the  loss 
known  and  take  prompt  measures  for  regaining  possession.  The  actual 
decisions  uuder  the  present  head  are  few,  but  the  leading  principle  ap- 
pears clear.  In  general,  if  the  loss  occurred  under  some  generally  excus- 
able calamity,  it  is  incumbent  upon  the  plaintiff  to  establish  that  the 
lender  was,  in  fact,  to  blame.  Beller  v.  Schultz,  44  Mich.  52!)  (borrowed 
flag  left  exposed  during  a  hail-storm).      And  see  ante,  12. 

■•^  §  75.  It  has  been  seen  (ante,  26)  that  care  by  the  bailee  of  our  first 
class  the  same  as  towards  his  own  affords  nothing  more  than  a  presump- 
tion vindicating,  most  of  all,  the  bailee's  good  faith  in  the  situation. 
The  illogical  nature  of  such  a  test  (more  care  than  towards  one's  own) 
appears  in  the  fine-drawn  discussion  by  Pothier  and  the  civilians  of  the 
hypothetical  case,  where  one's  house  is  on  fire,  and  whether  in  such  a  case 
the  borrowed  chattels  must  be  rescued  in  preference  to  one's  own.  This 
whole  controversy  appears  trivial. 

^  §  76.  If  dispossessed  without  fault,  he  is,  of  course,  not  answerable 
for  the  acts  of  a  robber,  thief,  or  bther  mere  stranger. 

*  §  76.  And  see  ante,  9,  31.  The  application  of  the  law  of  agency  to 
such  cases  may  raise,  sometimes,  "nice  and  puzzling  questions."  See 
analogous  case,  3  H.  &C.  256,  602  (where  English  judges  disagreed),  in 
the  misuse  of  a  building.  And  cf .  the  doctrine  of  sub-users,  as  applied  to 
hired  use,  post,  Part  IV.  c.  3. 


30  THE   LAW   OF   BAILMENTS 

cases  for  regulating  performance  ;  and  seldom  can  a  borrower 
of  valuable  cbattels  be  found  who  has  not  been  laid  under 
some  injunction  as  to  the  time  and  manner  of  enjoying  their 
use,  or  the  bestowal  of  care  upon  the  undertaking.  The 
usual  qualification  of  public  policy  applies;  and  while  such  a 
bailee  miglit  positively  insure  his  bailor  against  loss,  he  can- 
not by  special  contract  procure  his  own  immunity  for  gross 
negligence  or  wilful  misconduct. ^ 

58.  The  right  to  beneficially  use  is  of  the  essence  of  bail- 
ments of  the  present  class ;  but  mutual  understanding  may 
determine  how  far  this  right  shall  extend,  and  how  inci- 
dental expenses  regarding  the  tiling  shall  be  borne.^ 

59.  The  lender's  duties  correspond  to  those  of  the  borrower, 
so  far  as  decisions  may  serve  to  establish  a  legal  principle.^ 

^  §  77.  Thus,  one  who  borrows  may  make  a  written  contract  to  "  re- 
turn or  account  for,"  i.  e.,  to  make  full  restitution,  even  though  the  prop- 
erty be  destroyed  without  his  fault.  Archer  c.  Walker,  38  Ind.  472.  But 
no  special  contract  of  this  sort  ought  to  be  admitted  upon  doubtful  or 
conflicting  evidence.  Watkins  v.  Roberts,  28  Ind.  1G7.  On  the  other 
hand,  even  for  public  exhibition  purposes  by  a  municipal  or  charitable 
corporation,  a  borrower  cannot  lawfully  stipulate  that  the  lender  shall 
bear  all  the  risk  of  loss.  Smith  r.  Library  Board,  58  Minn.  108.  And 
see  ante,  10,  36. 

■■^  §  78.  Unless  circumstances  warrant  a  different  inference,  every 
gratuitous  loan  for  use  should  be  regarded  as  personal  to  the  borrower  by 
intendment.  4  Sandf.  (N.  Y.)  5  ;  5  Ind.  5IG  ;  1  Mod.  210.  But  cf.  9 
C.  &  P.  383.  Any  borrowed  domestic  animal  must  be  fed  and  sheltered, 
and  the  circumstance  that  tiie  borrower  bears  this  expense  does  not  nec- 
essarily change  the  gratuitous  nature  of  the  bailment.     See  66,  post. 

^  §  79.  The  civilians  have  taken  pains  to  enumerate  these  correlative 
duties  as  follows  :  (1)  He  must  allow  the  borrower  to  use  and  enjoy  un- 
molested the  thing  loaned,  as  long  as  the  bailment  properly  lasts  ;  (2)  He 
must  reimburse,  not  the  borrower's  ordinary  bailment  expenses,  but  such 
as  are  out  of  course  in  preserving  the  thing  lent;  (3)  He  must  not,  know- 
ingly, lend  an  injuriously  defective  article  without  giving  the  bailee 
notice  of  the  defects  ;  for  even  a  gratuitous  lending  should  be  to  confer  a 
benefit,  not  to  do  mischief.  As  to  tiiis  last  point,  the  lender  is,  with 
reference  to  his  borrower,  liable  for  all  damage  which  directly  results  from 
the  thing's  unsafe  condition  for  the  loan,  if  the  lender  alone  was  aware 
of  it;  but  not  where  the  defect  which  occasions  the  damage  was  utterly 
unknown   to  him,  and  could   not  readily  have  been  ascertained.     Cf. 


GRATUITOUS  LOAN  FOR   USE  31 

60.  Rights  of  action  against  third  parties  avail  here,  according 
to  the  better  opinion,  as  in  other  bailments ;  and  the  fact  that 
the  bailee's  own  interest  is  without  recompense  does  not  debar 
him,  since  he  is  answerable  over  for  the  thing  borrowed.^ 
But  so  slight  is  the  borrower's  interest  that,  if  the  lender 
may  terminate  the  loan  at  pleasure,  so  may  he  sue  third 
parties  in  his  own  name,  as  by  virtue  of  such  termination.^ 

61.  III.  Termination  of  the  Bailment.  There  are  various  ways 
in  which  a  bailment  of  the  present  class  may  be  terminated.  It 
is  commonly  terminable  at  the  bailor's  pleasure,  where,  at  all 
events,  the  fixed  time  or  a  reasonable  time  has  elapsed  ;  nor, 
perhaps,  ought  the  bailee's  own  right  to  be  deemed  inferior  in 
this  respect.^  A  formal  demand,  on  the  one  hand,  or  a  formal 
tender  on  the  other,  may  fix  one's  rights  in  this  respect."* 

Blakemore  v.  Bristol  R.,  8  El.  &  Bl.  1035;  6  H.  &  N.  329.  Slight  care  in 
communicating  such  defects  appears  to  be  the  standard  in  bailments  of 
this  class.  Coughlin  v.  Gillison  (1899),  1  Q.  B.  145.  And  see  Gagnon  v. 
Dana,  69  N.  H.  264;  58  N.  H.  134. 

1  §  80.  Gillette  v.  Goodspeed,  69  Conn.  363;  Chamberlain  v.  West,  37 
Minn.  54.  And  see  The  Winktield,  C.  A.  (1902)  42,  overruling  Claridge 
V.  Tramway  Co.  (1892),  1  Q.  B.  422. 

-  §  80.  It  is  fair  that  the  owner  should  be  allowed  to  intervene  for  his 
own  protection  in  such  a  case.  58  N.  H.  134  ;  69  Conn.  363 ;  9  Cow. 
(N.  Y.)  687.     And  see  ante,  39. 

3  §  81.  Our  courts  have  not  decided  whether  the  Roman  distinction  of 
definite  and  precarious  loans  shall  apply.  It  would  seem  fair,  however, 
that  the  right  of  a  lender  to  keep  for  a  time  fixed  should  be  respected, 
where  he  so  desires,  and  has  not  been  at  fault.  See  ante,  51.  But  in  any 
case  the  lapse  of  a  definite  period  of  loan  will  terminate  the  bailment ; 
and  where  the  loan  is  for  "  a  week  or  two,"  lapse  of  the  longer  period  fixes 
the  ultimate  limit.  Stipulation  apart,  a  reasonable  period  of  use  is  all 
that  any  borrower  has  a  right  to  expect.     5  Dana  (Ky.),  173  j  12  Tex.  370. 

*  §  81.  AVhere  no  uncertainty  exists,  or  the  demand  would  be  an 
empty  form,  such  preliminaries  may  be  dispensed  with.  Ross  v.  Clark,  27 
Mo.  549.  And  the  attempt  of  a  borrower  to  exercise  full  ownership  over 
the  thing  without  the  lender's  permission  —  as  in  selling,  pledging,  or 
letting  the  thing  out  to  hire  —  is  so  gross  a  breach  of  faith  as  to  enable 
the  lender  to  put  an  end  to  the  bailment  and  claim  repossession  or  dam- 
ages. 9  Barb.  (X.  Y.)  176 ;  McMahon  v.  Sloan,  12  Penn.  St.  229 ;  Crump 
r.  ^Mitchell,  34  Miss.  449 ;  1  C.  B.  672 ;  Wilkinson  v.  Verity,  L.  R.  6 
C.  P.  206. 


32  THE   LAW   OF   BAILMENTS 

62.  The  borrower's  duty  to  deliver  back  or  over,  as  to  time, 
place,  and  person,  will  depend  upon  the  circumstances  and 
situation.  A  borrower  is  not  free  to  exercise  his  own  option 
in  such  respects,  aside  from  the  mutual  understanding;  nor 
can  he  set  up  adverse  title  to  his  lender ;  though  if  some  third 
person  as  rightful  owner  should  put  him  at  legal  jeopardy, 
this  is  another  matter.^ 

63.  Whether  the  borrower  may  detain  for  expenses  incurred 
will  depend  upon  the  circumstances.^  The  lender's  interven- 
tion to  remedy  mischief  does  not  release  the  borrower  from 
liability  for  causing  that  mischief  through  his  own  culpable 
neijligenee  or  misconduct.^ 

^  §  82.  In  doubtful  cases,  delivery  back  to  the  lender  at  his  own 
residence  or  place  of  lending  may  be  presumed.  9  Barb.  (N.  Y.)  176.  As 
to  third  parties  who  claim,  see  ante,  4i ;  The  Idaho,  93  U.  S.  575 ;  34  L.  J. 
Q.  B.  137. 

As  to  the  lender's  representative,  see  72  N.  C.  234  (assignee  in  bank- 
ruptcy). And  see  Simpson  v.  Wrenn,  50  111.  222;  Nudd  v.  Montayne,  38 
Wis.  511.  On  the  borrower's  death,  this  bailment  may  usually  be  cut 
short  by  the  lender,  in  which  case  no  third  person  can  as  custodian  resist 
a  demand.     Smiley  v.  Allen,  13  Allen  (Mass.),  1(35. 

-  §  83.  Perhaps  for  extraordinary  expense.s  incurred  under  special  and 
justifying  circumstances. 

8  §  84.    And  see  7  Watts  (Penn.),  542. 

Discussion  in  this  chapter  should  impress  the  fact  that,  wherever  one 
is  intrusted  gratuitously  with  his  friend's  chattels,  —  as,  e.  g.,  with  a  bor- 
rowed horse,  or,  wlien  enjoying  free  hospitality,  with  the  use  of  household 
plate  and  furniture,  —  it  is  a  matter  not  only  of  honor,  but  of  legal  obli- 
gation on  his  part,  to  offer  to  make  good  any  damage  thereto  occasioned 
by  carelessness  on  his  own  part,  however  slight.  A  rule  less  strict  would 
^  properly  apply  where  the  horse  was  hired  by  him,  or  he  lodged  as  a  boarder 
or  paying  guest  of  the  person  owning  plate  or  furniture. 


J^  PAET  IV. 

ORDINARY  BAILMENTS   FOR  MUTUAL   BENEFIT. 


0- 


o.^ 


CHAPTER  I. 

BAILMENTS  FOR  HIRE   IN  GENERAL. 

64.  In  passing  from  gratuitous  bailments  to  those  intending  a 
mutual  benefit,  from  the  one-sided  undertakinsf  to  that  which 
puts  the  rights  of  the  parties  in  balance,  we  are  at  once  im- 
pressed by  the  similitude  borne  by  these  two  classes,  with  re- 
gard to  the  varied  purposes  which  the  bailment  may  seek  to 
accomplish.  This  similitude  jurists  have  somewhat  obscured 
by  a  promiscuous  use  of  Latin  epithets,  but  it  is  traceable  not- 
withstanding. Our  chattel  for  mutual  benefit  is  delivered  as 
before.  And  this  delivery  may  be,  to  speak  generally,  (1)  foy 
its  deposit,  or  (2)  for  the  performance  of  some  work  upon  it, 
or  (3)  for  its  carriage  -^in  all  of  which  three  instances  the 
bailee  has  the  main  undertaking  to  perform.  Or  it  may  be 
(4)  for  beneficial  use,  where  the  bailee  is  to  derive  some  tem- 
porary enjoyment.  In  only  one  marked  instance,  (5)  that  of 
pledge,  or  delivery  in  security  for  some  debt  or  engagement, 
does  the  bailment  for  mutual  benefit  present  an  essentially 
new  class  of  transactions  ;  and  -this  is  accumulative.  For, 
after  all,  the  difference  of  legal  principle  arises  only  from 
the  introduction  of  a  make-weight,  namely,  recompense,  or 
the  quid  'pro  quo  for  doing  as  before.^ 

^  §  85.  There  may,  of  course,  as  in  gratuitous  bailments,  be  a  com- 
pound bailment ;  or  a  bailment  with  option  to  purchase.  See  ante, 
11,  17. 

3 


34  THE   LAW   OF   BAILMENTS 

65.  Ordinary  bailments  for  hire,  will,  in  the  next  two  chap- 
ters, receive  treatment  so  as  to  show  separately  (following  the 
order  pursued  in  gratuitous  bailments),  first,  the  hire  of  ser- 
vices about  a  chattel ;  second,  the  hired  use  of  a  chattel.  And 
under  the  first  head  we  shall  incidentally  distinguish  these 
kinds :  the  service  of  custody  of  the  thing,  the  service  of  be- 
stowing work  upon  it,  and  the  service  of  canying  it  from 
one  place  to  another ;  not  for  the  sake,  however,  of  making 
blunt  dissection  of  a  bailment  purpose  which  often  runs  into 
combination.  But  extraordinary  or  exceptional  bailments, 
notably  Innkeepers  and  Common  Carriers,  we  reserve  for 
later  and  distinct  treatment.  That  unique  mercantile  trans- 
action, known  as  Pledge  or  Pawn  (which  is  also  an  ordi- 
nary bailment  for  mutual  benefit),  will  occupy  our  fourth 
chapter.! 

66.  Three  essentials  are  found  to  all  bailment  contracts  for 
hire :  (1)  a  chattel  or  chattels  as  the  subject-matter ;  (2)  a  rec- 
ompense ;  (3)  mutual  assent  to  accomplishing  a  specific 
bailment  purpose  towards  such  chattel  or  chattels  for  such 
recompense.^ 

67.  That  there  should  be  a  chattel  or  chattels  as  the  subject- 
matter  is  implied  in  every  bailment  from  its  definition.  Real 
estate  is  therefore  excluded  ;  but  any  kind  of  personal  property, 
corporeal  or  incorporeal,  may  furnish  a  subject-matter,  whether 
in  the  tangible  thing  itself,  or,  as  to  things  incorporeal,  in 

1  §§  86,  87.  We  speak,  here,  of  hiring  and  letting  with  reference  to  bail- 
ments of  chattels  only,  and  aside  from  the  hiring  of  mere  personal  services, 
since  bailment  operates  strictly  in  rem.  The  bailment  for  hire,  then,  may 
be  defined  as  one  in  which  recompense  is  to  be  given  either  for  services 
about  a  chattel,  or  for  its  temporai-y  use. 

As  to  the  corresponding  Roman  locatio  conductio  (which  we  may  liken 
to  the  sending  back  and  forth  of  a  tennis  ball),  see  §  86. 

2  All  this  is  analogous  to  the  law  of  sales.  The  distinction  runs 
sometimes,  closely,  and  yet  logically,  as  between  a  gratuitous  loan  and  a 
hired  use  (/.  e.,  with  mutual  recompense).  One  may  borrow  a  horse  (bail- 
ment of  second  class)  and  at  the  same  time  bear  the  expense  of  his  care. 
Bennett  v.  O'Brien,  37  111.  2.j0.  Or  he  may  take  a  horse  to  use  for  a 
season  in  distinct  consideration  of  the  animal's  keep  (bailment  of  the 
present  class).     Chamberlm  v.  Cobb,  32  Iowa,  161. 


BAILMENTS   FOR   HIRE   IN   GENERAL  35 

some  muniment  of  title  which  is  capable  of  delivery.^  But 
that  wliich  has  not  yet  come  into  existence  as  property,  or 
which  exists  as  such  no  longer,  cannot  be  the  subject-matter 
of  a  present  undertaking  for  hire.^ 

68.  As  to  a  recompense,  pretium,  or  price,  is  the  Roman 
term,  which  we  employ  with  quite  an  extensive  meaning  in 
our  law  of  sales.  This  recompense  need  not  be  definitely 
fixed,  provided  it  be  ascertainable  from  the  contract ;  and  it 
may  have  been  tacitly  implied  as  well  as  expressly  agreed  to. 
In  the  absence  of  more  positive  proof,  we  may  regard  com- 
pensation in  a  particular  bailment  to  be  such  as,  consistently 
with  local  and  business  usage  and  the  general  situation  and 
circumstances  of  the  parties,  would  be  just  and  reasonable. 
If  left  to  some  third  party  to  fix,  the  essential  is  supplied  on 
his  bona  Jide  performance  of  the  trust.^  Bailment  recompense 
is  commonly  in  money  ;  but  not  indispensably  so,  as  some 
other  kind  of  property  would  suffice,  some  service,  some  con- 
templated advantage  ;  any  reciprocal  benefit,  and  even  a  benefit 
contingent  and  indirect,  such  as  the  opportunity  of  getting 
more  business,  may,  it  is  held,  take  a  bailment  out  of  the 
gratuitous  class.* 

69.  Mutual  assent  to  accomplishing  a  specific  bailment  purpose 
towards  the  specific  chattel  or  chattels  for  the  specific  recom- 
pense is  our  third  essential ;  the  accomplishment  requiring,  of 
course,  that  delivery  precede,  and  delivery  back  or  over  follow. 
This  mutual  assent  must  relate  to  the  particular  subject- 
matter  whose  continuous  identity  our  law  of  bailments  so  care- 
fully preserves  ;  likewise  to  the  particular  compensation.  For 
if  I  promise  to  hire  a  certain  horse,  the  bailor's  assent  must 
not  attach  to  a  different  horse,  else  there  would  be  no  mutual 

1  §  89.    And  see  c.  IV,  post. 

2  §  89.  A  thing  which  will  prospectively  come  into  existence  may  be 
the  subject  of  an  executory  contract  for  hire  ;  but  there  can  be  no  bail- 
ment except  upon  delivery  or  taking  possession  of  the  thing  when  it  exists. 
Cf.  c  IV,  post. 

8  §90. 

4  Newhall  v.  Paige,  10  Gray  (Mass.),  368  ;  Bunnell  v.  Stern,  122  N.  Y. 
539 ;  Woodward  v.  Painter,  150  Penn.  St.  91.      Cf.  31  Vt.  161. 


36  THE  LAW  OF  BAILMENTS 

understanding,  but  rather  a  misunderstanding.  So,  too,  if 
the  bailee  offered  one  recompense  while  the  bailor  assented  to 
another,  the  essential  mutuality  would  be  wanting.  Error 
ffoinof  to  the  essentials  invalidates  the  contract :  and  fraud  or 
force  on  either  side  renders  it  voidable  by  the  aggrieved 
party.  1 

70.  Competent  parties  and  a  lawful  purpose  are  requisite  in  a 
contract  for  hire  upon  bailment  as  in  other  contracts.^  And 
to  compare  such  bailment  contract  with  a  contract  for  sale,  we 
in  the  latter  instance  watch  to  discover  the  passage  over  of  a 
full  title  or  property  in  the  thing ;  but  here  the  passage  of  a 
mere  corporeal  delivery.^ 

71.  This  contract  for  hire  is  distinguishable  from  a  bailment, 
but  here,  unlike  the  two  classes  of  gratuitous  bailment  already 
discussed,  a  mutual  consideration  supports  the  contract  and 
entitles  the  party  injured  by  a  breach  thereof  to  redress  in 
damages.*  Yet  our  bailment  in  general  arises  only  upon 
delivery  and  acceptance  with  intent  of  delivery  back  or 
over.^ 

72.  Non-contract  bailments  may  exist  upon  mutual  recom- 
pense, in  certain  instances,  as  in  the  gratuitous  bailments  of 
the  first  class,  already  considered.  And  here,  in  accord  with 
our  general  definition,  there  arises  rather  a  rightful  holding 
or  possession  of  another's  chattels  under  an  obligation  to 
return  or  deliver  over,  than  actual  delivery  and  acceptance.^ 

^  §  91.  Parker  v.  Marquis,  64  Mo.  38.  As  to  withdrawal  of  one's  pro- 
posal, where  the  other  made  a  counter-proposal,  see  Lincoln  v.  Gay,  164 
Mass.  537.  And  see  171  Penn.  St.  "243  (bailment  to  a  corporation)  ;  102 
Cal.  060. 

^  §  92.  As  to  liability  of  an  infant  for  his  tort,  but  not  his  contract,  see 
Homer  v.  Thwing,  3  Pick.  (Mass.)  492.  As  to  illegality,  see  Frost  v. 
Plumb,  40  Conn.  111.     And  see,  jtost,  c.  IV. 

8  §  93. 

4  §  94.     Cf.  anie,  22,  51. 

5  §  94.     And  see  next  chapter. 

^  §  94.  See  ante,  3,  16.  Under  the  present  head  maybe  included  the 
lawful  captors  or  salvors  of  a  vessel  at  sea,  and  (under  exceptional  cir- 
cumstances, where  a  reward  was  offered)  finders  on  land  ;  and  further, 
where  their  employment  in  rem  goes  not  unrecompensed,  sheriffs,  clerks, 
and  other  officers  of  the   law,  where  a  sort  of  judicial  sequestration  or 


BAILMENTS  FOR   HIRE   IN   GENERAL  37 

seizure  has  taken  place.     Cross  v.  Brown,  41  N.  H.  283  ;  Phelps  v.  People, 
72  N.  Y.  334. 

A  bailment  custody  and  responsibility  may  take  place,  moreover,  under 
various  circumstances,  where  the  contract  relation  is  simply  inferable 
from  the  situation.  As  where  a  customer  hangs  up  his  hat  and  coat  in  a 
restaurant  or  exchanges  his  clothes  in  a  closet  furnished  by  his  tailor  for 
trying  on  garments.  See  ante,  32.  Here,  if  there  be  an  inducement,  so 
that  the  constructive  bailment  is  not  gratuitous,  the  general  rule  of  bail- 
ment for  recompense  should  apply,  as  to  liability. 


S: 


,V^^x 


CHAPTER   II. 

HIKED   SERVICES  ABOUT  A  CHATTEL. 

73.  The  leading  divisions  of  the  present  chapter  are  these  : 
I.  ]\Iatters  preliminary,  including  delivery  in  bailment.  II. 
Accomplisliraent  of  the  bailment  purpose.  III.  Termination 
of  the  bailment.  These  correspond  to  the  divisions  hitherto 
employed  in  treating  of  bailments  without  recompense.^ 

74.  I.  Matters  Preliminary.  There  are  numerous  business  vo- 
cations whose  pursuit  involves  the  bailment  exercise  of  one 
or  more  of  these  three  chief  kinds  of  hired  service :  namely, 
/Ti  ly'rp^d  custody  of  a  tlrmg.,  (1\  jiired  work  upon  a  thing,  and 
(-3)  hired  carriage  of  a  thing.  Among  hired  custodians  are, 
safe-depositaries,  or  those  who,  for  reward,  take  money  and 
valuables  into  secure  places  on  special  deposit ;  warehousemen, 
a  designation  moi"e  generic,  but  famiharly  applied  to  such  as, 
for  reward,  keep  goods  and  merchandise  on  storage  ;  whai'f- 
ingers,  who,  for  reward,  undertake  the  charge  of  goocTsaim 
merchandise  on  wharves ;  and  agistors,  so  called,  who,  for 
reward,  take  care  of  domestic  animals.  Those  regularly  em- 
ployed in  doing  hired  work  upon  chattels  are  styled  workmen, 
mechanics,  artificers,  artisans ;  terms  which  may  here  be  not 
inappropriately  used  as  designating  a  wide  range  of  secondary 
manual  pursuits,  upon  a  thing  of  unchanged  identity,  from 
cobbling  a  shoe  to  rigging  out  a  vessel.^  The  hired  carriage  of 
chattels  is  a  pursuit  of  such  vast  importance  that  public  policy 
has  made  the  bailment  exceptional,  as  we  shall  show  hereafter ; 

^  See  ante^  13,   48. 

2  §  96.  See,  e.  g.,  Safe  Deposit  Co.  v.  Pollock,  8.3  Penn.  St.  301 ;  3 
Blatchf.  (U.  S.)  413  ;  Schwerin  v.  McKie,  51  N.  Y.  180;  Rogers  v.  Stophel 
32  Penn.  St.  Ill ;  Smith  v.  Cook,  1  Q.  B.  D.  79  (e.  g.,  stabling  horses  for 
customers)  ;  cases  post.     Or  in  making  a  product. 


HIRED   SERVICES   ABOUT   A   CHATTEL  39 

but  a  distinction  lies  between  Private  Carriers  and  Public  or 
Common  Carriers.^ 

75.  The  vocation  is  here  of  only  secondary  legal  consequence  ; 
and  for  hired  as  well  as  gratuitous  service,  notwithstanding 
the  important  bearings  of  business  usage,  each  bailment  stands 
on  its  independent  merits,  and  one's  promise  or  acceptance 
is  to  be  discussed  with  primary  reference  to  the  particular 
undertaking  and  particular  circumstances.^ 

76.  As  to  recompense,  one  of  the  three  essentials  to  a  con- 
tract of  hire  already  considered,  the  circumstances  must  de- 
termine whether  a  reward  was  mutually  intended  or  not; 
w^hether,  in  other  words,  the  bailment  is  for  hired  or  compen- 
sated service  with  its  greater  responsibilities,  or  for  gratuitous 
service  with  its  less.^ 

77.  Where  materials  are  to  be  employed  in  repairing  a  thing, 
the  law  of  accession  comes  into  view.^ 

1  §  96.  Of.  5  Harr.  238 ;  28  Vt.  268  ;  Part  VI,  c.  1,  post.  Private 
Carriers,  or  such  as  fall  without  the  restraints  of  a  public  vocation,  can 
seldom  be  found  as  a  class  in  modern  times,  but  we  usually  designate  as 
such  a  party  one  who,  not  making  hired  transportation  his  calling, 
undertakes  to  transport  for  reward  on  some  special  occasion. 

2  §  97.  Some  whose  pursuits  are  above  enumerated  —  e.g.,  warehouse- 
men and  wharfingers  —  may  appear  in  one  aspect  as  custodians,  and  iu 
another  as  workmen,  or  even  carriers  of  the  thing  delivered. 

^  §  98.  We  have  seen  that  bailment  recompense  need  not  be  in 
money;  and  that  even  an  indirect  advantage  may  often  suffice.  Ante,  67. 
The  question  of  recompense  or  non-recompense  in  a  given  case  is  one  of 
fact.  One's  usual  course  of  dealing,  his  line  of  business,  is  au  important 
and  often  a  decisive  circumstance.  5  Ind.  131 ;  4  Thomp.  &  C.  (N.Y.)96. 
Recompense  or  no  recompense  refers,  too,  we  must  remember,  not  to  the 
result  of  the  undertaking,  but  to  the  mutual  expectation  at  the  outset. 
And  cf.  Chamberlin  v.  Cobb,  32  Iowa,  161,  Francis  v.  Shrader,  67  111.  272. 

So,  too,  that  which  began  as  a  gratuitous  bailment  may  change,  by 
mutual  assent,  into  one  for  mutual  benefit,  or  vice  versa.  Preston  v. 
Prather,  137  U.  S.  604.     And  see  ante,  17. 

*  §  99.  Presumably,  where  a  workman  adds  materials  to  the  principal 
thing  of  the  owner,  a  bailment  was  intended,  and  the  accession  becomes 
owned  by  his  bailor,  as  well  as  the  principal  thing ;  and  so,  where  the 
owner  leaves  raw  materials  to  be  worked  up  into  a  new  product,  he  is 
bailor  and  owner  of  the  finished  product.  But  where  a  chattel  is  to  be 
manufactured  by  the  workman  himself  out  of  his  own  principal  materials, 
the  workman  is  no  bailee,  but  becomes  bound  to  an  executory  contract  of 


40  THE   LAW   OF   BAILMENTS 

78.  Until  delivery  of  the  chattel  there  is  no  bailment,  but  at 
the  most  tlie  right  to  a  baihnent  under  some  bailment  con- 
tract; either  party  to  which  contract,  if  for  hired  service 
about  a  chattel,  may,  for  a  breach,  compel  specific  performance, 
or  sue  in  damages ;  but,  upon  the  concun-ence  of  delivery  and 
acceptance,  the  parties  assume  the  full  relation  whose  rights 
and  obligations  we  shall  proceed  to  discuss.^ 

79.  II.  Accomplishment  of  the  Bailment  Purpose.  The  standard 
of  care  and  diligence  for  a  hired  bailee  is  now  to  be  con- 
sidered. He  ought,  in  good  faith,  to  perform  the  intended 
service  about  the  chattel,  in  the  exercise  throughout  of  the 
requisite  degree  of  care  and  diligence,  whether  it  relate  to 
mere  custody,  or  work  of  a  more  active  sort.  The  requisite 
degree  which  our  law  prescribes_is_sjyled  ^^  ordinary  " ;  and 
ordinarv_or  the  average  care  and  diligf^nce  is  such  asjjrudent 
persons  of  the  same  class  are  wont  to  exercise  towards  such 
property  or  in  ttie  management  of  their_own  property  under 
like  circumstances.  It  follows  that,  for  loss  or  injury  of  the 
thing,  caused  by  the  hired  bailee's  ordinary  negligence,  or 
failure  to  bestow  this  ordinary  or  average  care  and  diligence, 
he  must  respond.  Such  is  the  criterion  in  the  absence  of 
special  modifying  stipulations.^ 

sale.    See  Gregory  v.  Strykev,  2  Denio  (N.  Y.),  628;  19  Kan.  95;  32  Me. 
404;  164  Mass.  537;  Powder  Co.  v.  Burkhardt,  97  U.  S.  110. 

1  §  100.  As  in  all  bailments,  there  may  be  delivery  and  acceptance, 
either  personally  or  through  the  medium  of  agents.  There  may  be  con- 
structive instead  of  actual  delivery  or  acceptance;  as  where  one  continues 
the  hired  custodian  of  that  which  he  has  just  sold.  There  may  be  a 
rightful  taking  into  possession  rather  than  actual  delivery  of  possession. 
On  all  of  these  points  we  have  touched  before. 

2  §  101.  See  ante,  6,  7.  The  cases  under  this  head  are  quite  numerous. 
Ordinary  diligence  is  exacted  from  warehousemen.  Batut  v.  Hartley,  L.  R. 
7  Q.  B.  594;  10  R.  I.  218;  White  v.  Colorado  Central  R.,  3  McCr.  5.')9 ; 
Schwerin  v.  McKie,  51  N.  Y.  180;  Jones  v.  Morgan,  90  N.  Y.  4.  Government 
may  incur  such  a  bailment  liability.    Brabant  r.  King,  App.  Cas.  [1895]  632. 

From  safe-depositaries.  Safe-Deposit  Co.  v.  Pollock,  85  Penn.  St.  391 ; 
National  Bank  v.  Graham,  100  U.  S.  694,  704. 

From  wharfingers.  Rogers  v.  Stophel,  32  Penn.  St.  Ill;  Cox  v. 
O'Riley,  4  Ind.  368. 

From  agistors  of  cattle  and  stable  keepers.     Smith  ?'.  Cook,  1  Q.  B.  D. 


HIRED   SERVICES   ABOUT   A   CHATTEL  41 

80.    If,  therefore,  in  the  course  of  his  honest  exercise  of  average 

diligence,  while  performing  the  baihnent  service,  the  chattel 
perish  from  some  internal  defect,  or  through  the  operation  of 
natural  causes,  or,  generally,  because  of  inevitable  accident, 
the  bailee  will  stand  acquitted  of  blame.  So,  too,  if  it  be 
destroyed  or  captured  by  a  public  enemy  or  by  mobs  and 
rioters.  But  the  intervention  of  irresistible  force,  whether  of 
human  or  divine  agency,  excuses  no  hired  bailee,  whose  wrong- 
ful connivance  or  culpable  exposure,  or  breach  of  contract,  or 
remissness  of  duty  in  any  respect,  whether  for  preventing  the 
calamity,  or  lessening  its  injurious  effects,  proves  to  have 
proximately  occasioned  the  mischief.  Loss  by  fire,  burglary, 
robbery,  and  theft  give  rise  to  similar  considerations,  though 
less  likely  to  afford  a  positive  excuse ;  and  the  bailee's  good 
faith  and  due  diligence  have  especial  reference  to  precau- 
tionary measures,  repelling  force,  and  seeking  to  make  the 
loss  from  any  such  cause  as  light  as  possible.     In  short,  the 

79;  76  Mich.  265;  100  Mass.  40;  Eastman  v.  Patterson,  .38  Vt.  146; 
McCarthy  v.  Wolfe,  40  Mo.  520;  McMahon  v.  Field,  7  Q.  B.  D.  591; 
Union  Co.   v.   Mallory,  157  111.  554;  49  X.  J.  L.  682. 

From  forwarders  and  private  carriers  for  hire.  White  v.  Bascom, 
28  Vt.  268;  Pennewill  v.  Cullen,  5  Harr.  238. 

And  from  workmen  upon  chattels,  generally.  1  Gow.  30  •,  Baird  ?'. 
Daley,  57  N.  Y.  236;  Russell  v.  Koehler,  66  111.  459;  Hillyardn.  Crabtree, 
11  Tex.  264;  Halyard  v.  Dechelman,  29  Mo.  459;  11  Lea  (Tenn.).  264. 
As  where  a  saw-mill  owner  takes  logs  to  be  made  into  boards.  Gleason 
V.  Beers,  59  Vt.  581.     Or  where  apples  are  made  into  cider. 

The  same  standard  of  ordinary  care  is  applied  to  /juasi  bailees  not 
acting  wrongfully.  As  for  instance,  to  captors  and  prize-agents.  The 
Anne,  3  Wheat.  (U.  S.)  485.  To  one  who  holds  the  property  in  a 
replevin  suit  under  a  bond.  Bobo  v.  Patton,  6  Heisk.  (Tenn.)  172.  To 
sheriffs,  receivers,  and  judicial  officers  in  general,  whose  duty  towards  the 
thing  is  for  recompense.  Blake  v.  Kimball,  106  Mass.  115;  Cross  v. 
Brown,  41  N.  H.  283;  41  N.  Y.  Super.  284  ;    Aurentz  v.  Porter,  56  Penn. 

St.   11.3. 

So  to  finders,  when  stimulated  by  the  offer  of  a  reward,  and  to  salvors. 
Cargo  ex  Schiller,  2  P.  D.  145;  Wentworth  r.  Day,  3  Met.  352;  Cum- 
mings  V.  Gann,  52  Penn.  St.  484.  So  to  bailees  who  occupy  that  relation 
of  custody  in  cases  of  incomplete  sale  transactions.  Cloyd  v.  Steiger, 
139  111.  41. 


42  THE   LAW   OF   BAILMENTS 

doctrine  of  proximate  and  remote  cause  here  applies ;  with, 
however,  much  favor  to  any  bailee  who  can  establish,  on  his 
behalf,  that  the  loss  or  injury  occurred  under  circumstances 
Avhich  naturally  impute  no  blame  to  the  man  of  average  care 
and  diligence;  and  subject,  bf  course,  to  the  general  maxim, 
^t  the  ijiiii^  who  charges  culpable  negligence  has  upon  tha 
wh  ole  tliebu  rden  ot  pi'oof._^_ 


Local  custom,  moreover,  and  the  nature  and  qualities  of 
the  thing  itself,  together  with  the  peculiar  methods  sanctioned 
at  the  time  by  prudent  men  of  his  class  (where  a  vocation  is 
pursued)  bears  upon  the  mutual  intent  and  bailment  obliga- 
tion in  a  particular  case.^ 

82.  The  element  of  skill  in  case  of  a  hired  vocation  has  also 
a  bearing  here,  especially  if  some  active  work,  beyond  mere 
custody,  is  hired ;  and  by  skill  we  mean  a  certain  combined 
knowledge  and  dexterity  in  the  particular  pursuit.^ 

^  §  101.  Francis  v.  Dubuque  R..,  25  Iowa,  60;  Pacific  Co.  v.  Wallace, 
143  Mass.  453;  Claflin  v.  Meyer,  75  N.  Y.  260;  60  Ark.  100;  McMahou  v. 
Field,  7  Q.  B.  D.  591.     And  see  post,  Part  VI,  c.  4. 

2  §  103.  Thus,  safe-de2:)ositaries  must  use  secure  locks  and  set  a  watch, 
where,  in  the  case  of  cattle-keepers,  it  would  not  be  custosnary ;  and  for 
iuflammable  or  perishable  substances,  a  warehouseman  should  have  extra 
precautions  and  facilities.  In  the  place  as  well  as  the  method  of  storage, 
ordinary  care  should  be  taken  according  to  the  circumstances.  Zell  v. 
Duakle,  156  Penn.  St.  353  (employment  of  a  night  watchman);  Moulton  v. 
Phillips,  10  R.  I.  218. 

A  theoretical  standard  is  not  applied  where  the  bailor  had  the  means 
of  judging  for  himself  the  fitness  of  the  place  chosen  for  storage.  Searle 
V.  Laverick,  L.  R.  7  Q.  B.  122.  And  see  Keltoa  i\  Taylor,  11  Lea 
(Tenn.),  264.  For  this  is  to  apply  the  rule  of  mutual  interest  with  its 
qualifying  effect.  See  84.  So  where  the  bailor  insisted  upon  his  own 
methods.     3  Stark.  6,  per  Bayley  J. 

^  §§  104, 105.  Even  from  hired  custodians  —  as  of  explosives  —  a  certain 
special  skill  or  expertness  may  be  expected.  But  it  is  more  clearly  in  the 
hire  of  work  upon  a  chattel  that  the  consideration  of  skill  avails  ;  and 
here,  though  our  standard  of  ordinary  diligence  still  applies,  it  is  more 
likely  to  vary,  according  to  the  particular  pursuit  and  the  compensation 
chargeable  for  such  pursuits.  A  collier  may  be  employed  to  reduce  a 
piece  of  wood  to  charcoal,  or  an  artist  to  carve  it  into  a  vessel's  figure- 
head. See  Pusey  v.  Webb  (Del.),  47  A.  701 ;  Lincoln  v.  Gay,  164  JNIass. 
537  (a  dressmaker  making  cloth  into   a   dress   wrong  side   outwards). 


HIRED   SERVICE   ABOUT   A   CHATTEL  43 

83.  Some  special  illustrations,  under  our  present  head,  may 
here  be  furnished.^ 

84.  Special  contract  terms  are,  of  course,  to  be  considered,  by 
way  of  explaining  or  modifying  the  presumed  undertaking 
here  as  elsewhere,  but  alwaj^s  subject  to  the  limits  which 
public  policy  sees  fit  to  impose.^     Usage  and  custom  are  ad- 

(1)  Ordinary  and  reasonable  skill  in  the  vocation  assumed  is  expected  of 
every  one  assuming  to  be  a  responsible  bailee  in  that  vocation.  (2)  The 
failure  to  exercise  such  ordinary  and  reasonable  skill  in  the  bailment  will 
be  imputed  as  want  of  ordinary  care.  But  a  bailor's  previous  knowledge 
of  his  bailee's  unfitness  or  want  of  skill  for  the  employment  may  operate 
against  him  in  a  controversy. 

^  §  103.  To  cite  a  few  general  examples  in  point,  most  of  which  relate 
to  hired  custody.  A  hired  bailee  has  been  held  responsible  for  loss  :  For 
storing  cotton,  so  as  to  expose  torn  bales  upon  the  muddy  ground.  More- 
head  V.  Brown,  6  Jones  L.  (N.  C.)  367.  For  turning  a  young  colt  into  a 
field  accessible  to  a  bull.  Smith  v.  Cook,  1  Q.  B.  D.  79.  For  failing  to 
keep  adequate  guard  over  safe  deposit  vaults.  Safe  Deposit  Co.  v.  Pol- 
lock, 85  Penn.  St.  39.  For  storing  goods  in  a  wooden  warehouse,  with  a 
lot  of  gunpowder  closer  to  the  door  of  entrance.  White  v.  Colorado  Cen- 
tral R.,  3  McCr.  (U.  S.)  559  (an  accidental  fire).  And  see  Chenowith  v. 
Dickinson,  8  B.  Mon.  (Ky.)  156  ;  Wilson  v.  Southern  Pac.  R.,  62  Cal.  164  ; 
61  Mich.  275  (skating  rink);  59  Vt.  581  (sawmill);  112  Ga.  242  (cotton 
ginning). 

Act  of  public  authority,  or  judicial  seizure,  ought  to  excuse;  but 
not  the  seizure  under  a  void  attachment  or  where  the  bailee  is  remiss  in 
defending  or  giving  the  bailor  opportunity  to  defend.  Wood  Harvester 
Co.  V.  Dobry,  81  N.  W.  611  (Neb.)  ;  Powell  o.  Robinson,  76  Ala.  423.  And 
see  post,  95. 

\\'here  the  rule  of  implied  invitation  applies  to  use  a  restaurant,  bar- 
ber's shop,  or  tailor's  closet  for  hanging  up  or  bestowing  one's  outer  wear- 
ing apparel,  a  bailment  relation  may  presumably  arise ;  which  is  considered 
one  of  the  present  class,  when  an  incident  and  customary  inducement  of 
the  particular  business.  150  Penn.  St.  91;  122  N.  Y.  531;  92  N.  AV. 
354  (Neb.  1902).  Cf.  ante.  32.  But  the  bailor's  contributory  carelessness 
defeats.     12  Pa.  Super.  112.     And  see  further,  SQ,  post. 

2  §  106.  And  see  ante,  10,  36,  57.  AVarehouseman's  receipt  may 
embrace  express  stipulations,  valid  or  invalid,  under  such  a  rule.  And  cf. 
carrier's  special  contract,  bill  of  lading,  etc.,  post.  Part  VI,  c.  5 ;  Rein- 
stein  V.  Watts,  84  Me.  139.  See  Taussig  v.  Bode,  134  Cal. 260  ("owner's 
risk")  ;  78  Miss.  875  ;  Wells  v.  Porter,  169  Mo.  252. 

The  bailee's  essential  breach  of  contract  as  to  the  place  or  manner  of 
performance,  so  as  to  increase  the  exposure  of  the  property  to  danger, 


44  THE   LAW   OF   BAILMENTS 

missible  in  proof  with  this  very  idea  in  view  of  embracing 
what  sort  of  performance  each  party  might  reasonably  have 
expected  in  accomplishing  the  bailment  purpose.^ 

85.  Honesty  and  good  faith  are  mutually  and  reciprocally 
required  here,  as  in  all  other  classes  of  bailments.  An  honest 
bailee  for  hired  service  will  respect  the  fiduciary  relation 
into  which  he  has  entered  ;  he  will  not  attempt  to  sell,  pledge, 
or  appropriate  what  he  holds,  in  disregard  of  his  bailor's  inter- 
est ;  he  will  not  at  the  outset  falsely  pretend  to  skill  or  op- 
portunity which  he  does  not  possess ;  nor  will  he  take  the 
thing  into  his  possession  and  then  volunteer  some  objection 
to  the  bailor's  title  by  way  of  hindering  its  final  surrender  as 
promised.^ 

86.  The  rule  of  agency  in  the  performance  applies  frequently 
under  the  present  head,  as  in  bailment  generally ;  and  the 
cardinal  rules  of  principal  and  agent  are  applicable.^ 

enlarges  his  risk  under  the  doctrine  of  proximate  and  remote  cause  of 
loss,  or  rather,  perhaps,  as  a  deviation  from  the  bailment  agreed  upon. 
As,  e.  9.,  where  a  stable-keeper,  undertaking  to  keep  a  horse  in  his  stable, 
turns  him  out  into  the  yard,  and  the  animal  takes  cold.  McMahon  v. 
Field,  7  Q.  B.  D.  59L  Or  where  one  contracts  to  store  goods  at  a  certain 
place,  and  then  moves  them  elsewhere,  without  timely  notice  to  his  bailor, 
whereby  the  benefit  of  insurance  taken  out  by  the  latter  is  lost.  Lilley 
V.  Doubleday,  7  Q.  B.  D.  510.  But  cf.  Bradley  v.  Cunningham,  61  Conn. 
485,  which  distinguishes  in  a  peculiar  case. 

^  §  106.  The  usages  and  customs  of  carrying  on  a  business  at  the  time 
and  place  in  question  have,  if  reasonable,  a  qualifying  effect  upon  one's 
duty  ;  .but  spedal  contract.,syill  override  a  custom.  And  see  post,  Part  VI, 
c.  5.  For  the  duty  of  a  cold^sCTn-atyyVvarehouseman,  see  107  La.  An.  172; 
171  N.  Y.  269;  78  Conn.  55.     And  see  81. 

2  §107.  See  Calhoun  v.  Thompson,  50  Ala.  166;  62  Penn.  St.  242. 
But  as  to  rightfully  assigning  one's  mere  interest  as  bailee,  see  Nash 
V.  Mosher,  19  Wend.  451 ;  Bailey  v.  Colby,  M  N.  D.  29.  And  see  ante, 
8,29. 

»  §  108.  Thus,  the  safe-deposit  or  storage  business  is  frequently  carried 
on  in  these  days  by  chartered  companies  ;  and  so  is  it  with  a  wharf  busi- 
ness. Indeed,  in  any  private  pursuit,  one  properly  employs  often  his 
sub-agents,  clerks,  or  workmen,  for  whose  performance  he  is  answerable. 
See  Blake  v.  Kimball,  106  ]\lass.  115;  9  Bush  (Ky.),  3;  Baird  v.  Daly,  57 
N.  Y.  2:36. 

Where  a  bank  of  general  deposit  receives  some  special  deposit  —  i.  e., 


HIRED   SERVICE   ABOUT   A    CHATTEL  45 

87.  The  liability  of  a  hired  bailee  to  third  persons  is  some- 
times considered.^ 

880  The  bailee's  right  to  undisturbed  possession  is  recognized, 
pending  tlie  proper  accomplishment  of  the  bailment  purpose  ; 
and  this  right  applies  as  against  the  bailor  and  all  third  per- 
sons, except  where  there  is  rightful  intervention  and  demand 
by  some  paramount  owner  of  the  thing.^ 

89.  The  bailee's  right  of  compensation  must  also  be  re- 
spected, in  accordance  with  reasonable  expectation,  or  the 
mutual  intendment  of  the  relation.  Custom,  a  special  under- 
standing, or  the  spirit  of  the  engagement  may  establish  this 
compensation,  as  something  to  be  rendered  at  the  outset,  or 
by  periodical  instalments,  or  when  the  work  is  fully  com- 
pleted :  but,  in  most  bailment  undertakings,  the  third  is  the 
presumable  arrangement.'' 

a  package  or  box  of  valuables  for  storage  —  and  there  is  mutual  induce- 
ment and  consideration  for  such  custody,  the  rules  of  agency,  already  con- 
sidered, Mill  apply.     Of.  ante,  31,  and  Preston  v.  Prather,  137  U.  S.  004. 

In  general,  (1)  every  agency  has  its  proper  scope  and  limits.  Aldrich  v. 
Boston  &  Worcester  R.,  100  Mass.  31  (where  servants  of  a  warehouseman 
came  on  the  premises  at  night,  while  the  warehouse  was  burning,  only  as 
individuals  or  citizens).  (2)  Fur  the  negligence  of  one's  agent,  in  the 
course  of  his  employment,  the  principal  bailee  is  answerable  to  his  bailor, 
and  the  agent  is  not.  Cases  cmte ;  133  Cal.  531;  180  111.  110;  1-23  N.  Y. 
57  ;  85  Penn.  St.  391.  (3)  For  the  wilful  and  wanton  misconduct  of  the 
agent,  causing  injury  or  loss  of  the  thing,  he  is  civilly  and  criminally 
responsible  to  the  bailor,  while  the  bailee  is  not ;  but  (4)  if  under  such  cir- 
cumstances, the  principal  bailee  is  shown  to  have  participated  in  the  mis- 
chief, as  by  joint  wrong-doing,  or  by  want  of  ordinary  care  and  diligence 
in  employing  such  agent  (as  in  careless  supervision,  careless  disregard  of 
the  agent's  unfit  habits  or  character,  etc),  such  principal  may  be  held 
answerable. 

But  any  bailee  or  principal  may  sue  his  own  sub-bailee  or  agent  for 
negligent  conduct  causing  him  damage.     McGiil  v.  Monette,  37  Ala.  49. 

^  §  109.  A  bailee  may  be  sued  by  third  persons  for  injuries  occasioned 
such  persons  by  the  property  in  his  temporary  custody-  Weymouth  v, 
Gile,  72  Me.  44G  (trespass  committed  by  cattle  in  his  charge).  And,  so, 
as  to  injury  done  third  persons  by  the  hirer  of  a  runaway  horse,  see  post, 
c.  3. 

'  §  110. 

^  §§  111-113.  Compensation  may  be  awarded  differently,  according 
as  the  service  upon  the  chattel  has  been:    (1)  left  incomplete;   (2)   or 


46  THE   LAW   OF    BAILMENTS 

90.  How  expenses  shall  be  borne,  sucli  as  the  hired  bailee 
may  have  incurred  while  performing  his  services,  the  evident 
understanding  of  the  parties  must  ultimately  determine  ;  but 
usually  the  hired  bailee  is  understood  to  bear  such  incidental 

bestowed  differently  from  what  was  mutually  intended;  (3)  or  com- 
pletely bestowed  in  accordance  with  the  mutual  intention.  The  doctrine 
for  the  two  former  cases  is  not  readily  reduced  to  rule;  but  the  two  in- 
quiries of  chief  pertinence  appear  to  be,  whether  blame  attaches,  in  fact, 
to  either  party,  and  how  far  a  mutual  understanding  may  have  regulated 
the  particular  case. 

(1)  The  earlier  rule  of  universal  law  has  been,  that  should  the  thing 
perish  without  fault,  the  owner  loses  his  chattel  and  must  recompense  his 
bailee  besides.  But  local  usage  or  special  contract  creates  exceptions  at 
the  present  day,  so  that  the  doctrine  of  apportionment  may  a{>ply  —  the 
owner  losing  his  chattel  while  the  bailee  loses  his  claim  for  work  upon  it. 
But  where  there  was  fault  in  occasioning  the  loss,  the  party  at  fault,  on 
one  side  or  the  other,  should  bear  the  whole  loss,  or  at  all  events  indem- 
nify fully  the  other  party.  In  a  simple  incompleteness  of  bailment  ser- 
vice, our  courts  incline  to  allow  the  party  at  fault  to  set  off  the  substantial 
benefit  received  by  the  other  against  the  damage  occasioned  by  breach  of 
engagement  —  or  in  other  words  to  make  the  injured  and  innocent  party 
whole,  no  more  and  no  less.  See  §  111.  Smith  v.  Meegan,  22  Mo.  150; 
McConihe  v.  New  York  R.,  20  N.  Y.  495;  Appleby  i:  Myers,  L.  R.  2  C.  P. 
651. 

(2)  The  use  of  better  materials  than  were  called  for,  or  the  bestowal  of 
better  work  affords  the  bailee  no  ground  for  claiming  extra  remuneration, 
unless  the  bailor  has  plainly  assented  to  the  deviation  by  way  of  mutually 
changing  the  original  engagement.  Dermott  v.  Jones,  2  Wall.  (U.  S.)  1. 
But  reasonable  delay  is  leniently  regarded  except  where  a  fixed  time  or 
other  special  circumstances  at  the  outset  had  entered  into  the  engagement 
and  damage  results.  And  see  61  Hun  (N.  Y.),626.  Deviation  or  a  dis- 
regard of  directions,  especially  if  injurious  to  the  bailor,  renders  the  bailee 
liable ;  and  here  again,  as  under  the  general  law  of  contracts,  the  funda- 
mental principle,  in  case  of  breach,  is  to  award  the  injured  party  such 
amount,  by  way  of  damages,  as  will  make  him  whole  under  the  engage- 
ment ;  i.  e.  by  setting  off  against  the  intended  recompense  such  damage 
as  the  bailor  may  have  suffered  by  reason  of  his  bailee's  incomplete  or 
faulty   performance.     §  112;  6  T.  R.  320. 

(3)  For  full  performance,  full  compensation  is  due,  i.  e.  that  mutually 
stipulated,  or  such  as  should  be  reasonable.  §  113  ;  Garrard  v.  ]\Ioody, 
48  Ga.  90;  Learned  Co.  r.  Fowler,  Ala.  (1896).  Even  a  finder  by  laud 
becomes  entitled  to  the  reward,  if  any,  which  the  loser  publicly  offered. 
Wentworth  v.  Day,  3  Met.  (Mass.)  352;   52  Penn.  St.  4SL 


HIRED   SERVICE   ABOUT   A   CHATTEL  47 

expenses,  placing  the  rate  of  compensation  high  enough  to 
make  him  whole.^  In  some  extreme  and  unforeseen  emer- 
gency, thougli  not  otherwise,  the  hired  bailee  may,  in  pursu- 
ance of  his  duty,  make  expenditure  for  the  preservation  of 
the  thins:  at  his  bailor's  cost.^ 

91.  The  hired  bailee  may  sue  third  parties  in  his  own  name 
for  injury  to  the  thing,  whether  tortwise,  or  for  breach  of  con- 
tract obligation  Avith  him.^  But  the  bailor  or  owner  may  thus 
sue  a  wrong-doer  instead.  Full  damages  are  recoverable  in 
either  action ;  but  recovery  in  full  by  either  bailor  or  bailee 
bars  the  action  of  the  other ;  and  it  is  for  the  court  to  protect 
and  adjust  the  several  interests  of  bailor  and  bailee  in  the 
fund,  on  the  intervention  of  either  party.^ 

92.  Hired  bailees  are  not  bound  to  insure  the  chattels  in 
their  keeping,  independently  of  some  special  undertaking  so 
to  do.  But  the  hired  bailee's  special  property  is  here  of  such 
value  as  entitles  him,  if  so  he  desire,  to  cover  the  risk  of  fire 
by  a  policy  to  the  suitable  amount ;  and  thus  is  it  with  lien 
creditors  generally.^ 

^  §  114;  3  Burr.  1592.  As  to  expenses  incurred  through  the  bailee's 
fault,  see  Jones  v.  Morgan,  90  N.  Y.  4. 

2  §  114.  But  a  bailee's  more  prudent  course  is  to  obtain  his  bailor's 
consent  in  advance,  where  he  has  opportunity  to  consult.  Small  v.  Rob- 
inson, 69  Me.  425  (creation  of  a  lien  in  favor  of  third  person  not  favored, 
without  bailor's  authority). 

3  §  115;  White  v.  Bascom,  28  Vt.  268;  Shaw  v.  Kaler,  106  Mass.  242; 
The  Minna,  L.  R.  2  Ad.  &  Ecc.  97.  For  if  the  gratuitous  bailee  has  such 
a  right,  by  virtue  of  his  possession  and  liability  over,  much  more  has  a 
bailee  with  a  valuable  interest.  See  ante,  11,  39,  60.  Larceny  from  a 
bailee  is  larceny  from  the  owner.     101  Mo.  316. 

*  §  115;  20  Atl.  1;  Engel  v.  Lumber  Co.,  60  ]\Iinn.  39.  As  to  the 
bailor's  action  of  replevin  against  a  wrongful  purchaser,  see  64  N.  C.  488. 

^  §  116.  While  usage  might  presume  an  undertaking  to  insure,  spe- 
cial contract  might  exclude  it.  See  Insurance  Co.  v.  Chase,  5  Wall. 
(U.  S.)  513.  Warehousemen  and  wharfingers  in  the  course  of  business 
frequently  keep  up  floating  policies  of  insurance  for  the  protection  of  cus- 
tomers and  the  security  of  their  own  charges.  Hough  v.  People's  Ins.  Co., 
36  Md.  398;  Johnson  v.  Campbell,  120  Mass.  549;  5  E.  &  B.  870.  And 
see  White  v.  Madison,  26  N.  Y.  117  (attaching  officer)  ;  98  Mass.  420,  423; 
Wilson  V.  Jones,  L.  R.  2  Ex.  150,  151.  For  special  contracts,  see  108 
Penn.  St.  354;  59  Minn.  203;  139  U.  S.  79. 


48  THE  LAW  OF  BAILMENTS 

93.  III.  Termination  of  the  Bailment.  The  bailment  for  hired 
services  about  a  chattel  may  either  be  interrupted  from  some 
cause,  or  carried  to  its  close  ;  but  in  the  natural  coui-se  it  con- 
tinues until  the  fixed  period,  or,  it  may  be,  a  reasonable  time, 
has  elapsed  for  its  full  accomplishment.  Where  the  duration 
of  hired  custody  is  not  fixed  it  lasts  until  either  party  upon 
due  notice  sees  fit  to  terminate  it.  The  main  duty  of  the  hired 
bailee,  when  his  bailment  terminates,  is  to  make  delivery  of 
the  thing  back  or  over  in  suitable  order  ;  and  that  of  the 
bailor  is  to  render  the  final  compensation  ;  but  to  know  the 
correlation  of  these  duties,  in  a  given  case,  is  of  some  con- 
sequence ;  so,  too,  is  it  to  know  the  exact  point  at  which 
deliver}'  back  or  over  is  complete.^ 

94.  Business  usage  or  custom  may  affect  the  method  of  de- 
livering back  or  over  in  certain  pursuits.  With  warehouse- 
men and  wharfingers,  it  is  not  an  uncommon  business  usage 
to  give,  at  the  outset,  a  delivery-order  or  receipt,  whose 
transferee  will  be  presumptively  entitled  to  the  thing ;  since 
goods  are  constantly  sold  while  thus  in  store,  and  advances 
made  upon  them,  on  the  faith  of  such  documents.  The 
effect  of  such  orders  as  docmnents  of  title,  like  bills  of 
lading,  is  not  clearly  settled  ;  nor  do  our  States  harmonize 
in  policy  with  regard  to  the  effect  of  their  indorsement  and 
delivery  in  establishing  title.^ 

1  §  117.   See  Felton  v.  Hales,  67  N.  C.  107. 

2  §  117;  Union  Stock  Yard  Co.  v.  Mallory,  1-57  TIL  554.  See  66  Ala. 
10;  44  Ark.  301  ;  52  Cal.  611  ;  135  Mass.  1.  Apart  from  local  statute, 
warehouse  receipts,  though  "  negotiable  "  in  a  certain  sense,  have  not  the 
full  character  of  negotiable  paper.  Insurance  Co.  v.  Kiger,  103  U.  S.  352 
(no  guaranty  of  the  goods  as  described).  And  see  Commercial  Bank  v. 
Bemis,  177  Mass.  95.     See  further  c.  4,  post. 

Apart  from  usage  or  statute,  and  in  absence  of  adverse  notice,  the 
warehouseman  is  safe  in  transferring  possession  in  good  faith  accord- 
ing to  the  directions  of  the  person  from  whom  he  received  the  goods. 
Parker  v.  Lombard,  100  Mass.  405.  Delivery  to  the  wrong  person 
amounts  in  general  to  conversion  of  the  thing,  while  delivery  to  tiie 
right  party  is  justified.  60  Ark.  62;  Mortimer  v.  Ragsdale,  62 
Miss.  86  ;  Oswego  Bank  v.  Doyle,  91  N.  Y.  32.  And  see,  post,  Part 
VI,  0.  6.     If  delivery  by  warehouse  warrant,  etc.,  is  stipulated,  a  de- 


HIRED   SERVICE   ABOUT   A   CHATTEL  49 

95.  As  to  delivery  to  a  paramount  owner,  or  one  with 
adverse  claim,  the  rule  is,  as  in  all  bailments,  that  the  bailee 
must  honor  his  own  bailor's  title,  and,  upon  no  pretext,  excuse 
redelivery  as  he  promised,  by  setting  up  the  claims  of  another 
or  volunteering  a  dispute.^  But,  like  all  other  bailees,  he 
must  respect  the  adverse  claim  of  a  superior  owner  or  other 
who  makes  demand  upon  him,  and  in  such  case,  giving  his 
bailor  knowledge  of  the  fact  and  an  oppoi'tunity  to  justify 
his  own  demand,  he  may  guard  his  own  course  with  honest 
prudence.^  Claimants  who  do  not  appear  until  after  the  bailee 
has  redelivered  to  his  bailor  cannot,  of  course,  hold  him 
liable.3 

96.  If  there  has  been  a  change  of  owners  in  course  of  the 
bailment  and  the  bailee  is  duly  notified  thereof,  he  holds  under 
a  transfer  of  title  which  he  and  all  others  are  bound  to  regard  ; 
and  if  the  bailee  attorns  to  the  new  owner  in  such  manner  as 
warrants  the  title  for  good  consideration  to  the  latter,  he  is 

lively   without   production    of   such   document   is    at   the   bailee's   risk. 
163  N.  Y.  oGJ. 

Every  bailee  for  recompense  is  bound  to  deliver  to  the  bailor  or  his 
agent,  or  to  such  third  person  as  may  mutually  have  been  agreed  upon, 
and  a  redelivery  in  good  faith  pursuant  to  the  bailment  undertaking, 
before  notice  of  a  revocation  of  agency,  or  of  the  claim  of  a  paramount 
owner,  will  discharge  him,  Steele  i\  Marsicano,  102  Cal.  666 ;  Reamer  v. 
Davis,  85  Ind.  201. 

1  §  118;  23  La.  An.G3;  Foltz  v.  Stevens,  54  111.  180  ;  Peebles  v.  Farrar, 
73  N.  C.  342;  Biddle  r.  Bond,  6  B.  &  S.  225  ;  Rogers  v.  Lambert,  [1891] 
1  Q.  B.  318.     And  see,  pos/.  Part  VI,  c.  6. 

'■^  §  118.  As  in  other  bailments,  he  may,  instead  of  taking  his  own 
risk,  deliver  upon  a  bond  of  indemnity,  or  interplead  in  equity  the 
conflicting  parties.  Biddle  v.  Bond,  6  B.  &  S.  225 ;  Ball  v.  Liney,  48 
N.  Y.  6  ;  Kelly  v.  Patchell,  5  W.  Va.  585  ;  Roberts  r.  Yarboro,  41  Tex. 
449;  45  N.  Y.  Super.  428.  If,  in  a  strait  between  claimants,  the  bailee 
makes  himself  an  active  party  to  the  controversy,  or  decides  for  himself, 
he  must  stand  or  fall  by  the  choice  he  makes.  Forcible  dispossession 
by  the  law  is  an  excuse  to  him,  where  he  gave  his  bailor  fair  opportunity 
to  defend  or  resisted  with  due  diligence. 

3  34  La.  An.  1133.  So  strictly  is  the  bailee  bound  to  honor  his  bail- 
or's title,  on  his  own  part,  that  if  he  accepts  the  bailment  with  full  knowl- 
edge of  an  adverse  claim  he  cannot  set  up  that  claim  afterwards  against 
his  bailor,  of  his  own  volition.     Davies,  Ex  parte,  19  Ch.  D.  86. 

4 


50  THE   LAW   OF  BAILMENTS 

estopped  from  setting  up  jus  tcrtii  against  liim  afterwards.^ 
Yet  circumstances  may  arise,  in  a  doubtful  case  of  new  or 
adverse  title,  which  should  fairly  afford  the  bailee  time  to  make 
prudent  inquiry  before  determining  his  course.^ 

97.  Demand  should  usually  be  made  upon  the  bailee,  who 
is  remiss  in  delivering;  whereupon,  if  the  default  continues 
without  good  excuse  offered,  suit  for  conversion  or  replevin 
will  lie ;  or  where  the  default  is  in  breach  of  tlie  bailee's  own 
engagement,  an  action  of  damages  as  for  breach  of  contract 

:  may  be  brought.  ^  But,  as  will  presently  appear,  a  bailor  of 
the  present  class  has  not  the  right  to  demand  his  chattel  back 
regardless  of  the  bailee's  right  to  recompense,  but  should 
tender  what  is  due.* 

98.  Successive  bailment  duties  are  often  considered  in  our 
present  connection  ;  and  in  modern  business,  warehouse  and 
wharfinger  duties  are  closely  associated  with  those  of  common 
carrier;  so  that  successive  parties,  or  even  the  same  parties, 

'may  pursue  successive  duties  towards  the  same  thing.^ 

99.  The  bailee's  right  of  lien  to  secure  recompense  here 
intervenes,  in  such  sense  that  it  is  the  bailor,  rather  than  the 
bailee,  who  should  here  take  the  initiative.  Perhaps,  how- 
ever, delivery  and  compensation  should  be  called  concomitant 
acts,  so  far  as  one  party  seeks  to  place  the  other  in  the  wrong 
by  active  litigation.^    But,  for  his  better  security  in  obtaining 

1  §  119.  Henderson  i;.  AVilliams  (189.3),  1  Q.  B.  521 ;  Biddle  v.  Bond, 
6  B.  &  S.  225. 

2  Patten  v.  Baggs,  43  Ga.  107 ;  Rogers  v.  Weir,  34  N.  Y.  463.  And 
see  40  N.  Y.  Super.  222 ;  Batat  v.  Hartley,  L.  R.  7  Q.  B.  594.  As  to  a 
bailor's  subsequent  creditors,  see  Freiberg  v.  Steenbock,  54  Minn.  509  ; 
Dempsey  v.  Gardner,  127  Mass.  381. 

8  §  120.  Spencer  v.  Morgan,  5  Ind.  146  ;  Leonard  ik  Dunton,51  111.  482; 
Bates  V.  Stansell,  19  Mich.  91  ;  Halyard  o.  Declielraan,  29  Mo.  459; 
Roberts  v.  Yarhnro.  41    Tex.   4t^^ 

^  Brown  v.  Dempsey,  95  Penn.  St.  243. 

^  §  121.  And  see,  post,  Part  VI,  cs.  3,  6.  It  may  be  a  nice  point  to 
determine  where  one  l)aibnent  .service  ends  and  another  begins,  or  where 
bailment  ceases  altogether  upon  a  redelivery.  Reamer  v.  Davis,  85  Ind. 
201;  4  Biss.  (U.  S.)  13.  The  bailment  control  and  responsibility  may 
last,  although  help  be  called  in  delivering  over.    14  Wend.  (N.  Y.)  225. 

8  §  122. 


HIRED  SERVICE  ABOUT  A  CHATTEL  51 

his  just  recompense,  tljp  Inw  gives  in  the  bailee  a  lien  upon 
j^T^j^JTiRttel^or  ohat.tejs^t'^  ^^^^  pvtp.nt  of  Ay^i-'^tever  may  be  due 
f^or  the^  particular  servji^J-  Nor  is  the  lien  a  privilege  for 
regular  occupations  of  hired  bailment  only,  but  it  is  inferable 
so  commonly  from  the  relation  of  hired  service  about  a  thing, 
that  the  right  to  demand  compensation  is,  as  a  rule,  under- 
stood to  carry  with  it  the  right  of  compelling  compensation  by  a 
particular  lien.^  Liens  are  recognized,  on  principle,  in  various 
other  relations  of  service ;  and,  in  general,  the  law  favors, 
by  construction,  the  right  of  a  particular  rather  than  a  general 
lien.^ 

^  §  122.  This  right  has  been  so  far  extended  by  usage  and  the  written 
law,  that  scarcely  a  transaction  is  left,  referable  to  the  present  head, 
where  the  bailee  is  denied  this  advantage.  A  stable-keeper,  or  agistor, 
has  at  the  common  law  no  such  lien  ;  perhaps,  because  of  the  disad- 
vantage, rather  than  advantage,  that  may  often  arise  from  having  to 
feed  and  shelter  an  animal  left  on  one's  hands.  But  local  legislation 
now  confers  this  right,  as  optional  to  the  agistor.  Hired  bailees  for 
bestowing  work' have  a  lien  within  the  rule  of  the  text;  also  hired 
custodians,  suclf  as  warehousemen  and  wharfingers.  §  122  and  citations. 
And  as  to  carriers,  see  Part  VI,  c.  7,  post.  Local  statutes  extend  the 
right  to  new  classes  of  pursuits,  32  Minn.  126.  Usage  and  common  law 
may  also  extend  to  new  pursuits.  And  a  lien  may  otherwise  be  created 
by  the  express  agreement  of  the  parties.  Miller  v.  Marston,  35  Me.  153 ; 
Goodrich  v.  Willard,  7  Gray  (Mass.).  183. 

2  lb.  The  finder's  lien  exists,  if  a  reward  be  offered.  3  Met.  (Mass.) 
352  ;  8  Gill  (Md.),  213.  And  as  to  maritime  liens,  see  works  on  Shipping. 
See  Leavy  v.  Kinsella,  39  Conn.  50  (bailee  ''  by  compulsion  "). 

3  §  122.  By  special  agreement,  or  well-sanctioned  business  usage,  a 
lien  might  be  extended  in  favor  of  a  general  balance  due  the  bailee; 
but  tlie  favor  of  the  law  shines  only  upon  particular  liens.  See  35  Me. 
135,  155;  20  Fed.  (U.  S.)  89t.  But  in  a  particular  bailment,  with  delivery 
by  loads,  the  lien  for  the  whole  recompense  may  be  kept  secure  upon 
the  last  load.  2  Pick.  (Mass.)  213;  3  M.  &  S.  167.  And  in  the  case  of 
successive  bailments  —  e.g.,  connecting  cariiers  —  a  bailee  may  pay  his 
predecessor's  riglitful  charges,  and  then  hold  the  property  until  wholly 
reimbursed.  See  3  Thomp.  &  C.  (N.  Y.)  761 ;  53  Fed.  (U.  S.)  401 ; 
Common  Carriers,  post,  Part  VI,  cs.  7,  9 ;  and  see  4  Comst.  (N.  Y.)  551. 
Of.  Small  u.  Robinson,  69  Me.  425;  Gilson  v.  Gwinn,  107  Mass.  126 
(no  lien  for  a  sub-employee  who  did  his  work  knowingly  on  the  bailee's 
credit). 

The  reimbursement  of  necessary  and  proper  expenses,  i.e.    (customs 


52  THE   LAW   OF   BAILMENTS 

100.  But  this  liezi  right  does  not  override  the  •will  of  the  party 
for  whose  benefit  our  law  asserts  it.  There  can  be  no  lien 
where  the  terms  of  the  bailment  undertaking  or  the  status  of 
the  property  expressly  forbid  the  supposition  that  it  was  in- 
tended ;  as,  for  instjince,  where  the  bailee  plainly  agreed  to 
give  his  bailor  credit.^  Founded,  too,  in  continuous  posses- 
sion, the  lien  lasts  only  while  the  hired  bailee  chooses  to 
maintain  his  hold ;  and  voluntary,  though  not  involuntary, 
relinquishment  of  possession  on  his  part  is  tantamount  to 
a  waiver  or  abandonment  of  the  lien.  For  an  independent 
and  exclusive  possession  of  the  thing  by  the  bailee's  intend- 
ment is  indispensable  to  the  existence  of  a  lien  at  common 
law.  2 

101.  The  bailee's  right  to  sue  for  recompense  exists,  with  or 
without  the  enforcement  of  a  lien,  since  any  demand  for 
debt  is  enforceable  apart  from  the  security ;  and  such  must 
be  his  remedy  where  the  bailee  delivers  up  the  thing,  giving 
his  bailor  credit.^ 

102.  Continuous  possession  of  the  thing  by  right  of  his  lien, 
will,  in  general,  be  deemed  rightful  in  the  bailee  until  his 
bailor  has,  besides  demanding  the  chattel,  paid  or  tendered 
what  was  lawfully  due  for  the  bailment  service,  and  thereby 
put  him  in  default.  This  keeps  the  requisite  standard  of  dil- 
igence as  before,  in  the  custody  after  performing  the  main 

duties),  may,  if  paid  by  the  bailee,  be  covered  by  his   lien.     65  111.  72; 
2  Sawyer  (U.  S.),  428. 

1  §  123;  Tucker  v.  Taylor,  53  Ind.  93  ;  Hale  v.  Barrett,  20  111.  195; 
Robinson  v.  Larrabee,  63  Me.  116;  1  Daly  (N.  Y.),  112. 

2  §123;  12  Nev.  276;  12  Neb.  66;  03  Me.  110;  Vinal  r.  Spofford, 
139  Mass.  126  ;  Fitzgerald  v.  Elliott,  162  Penu.  St.  120.  Byt  local  statute 
sometimes  modifies  the  rule.  A  wrongful  misuse  or  misappropriation  of 
the  thing  may  displace  the  lien.  But  an  honest  mutual  intent  is  not  to 
be  lost  siglit  of;  and  a  dispossession  which  is  fraudulent  or  by  force  does 
not  displace  one's  lien.  As  to  estoppel  by  acts  or  conduct,  see  Blackman 
V.  Pierce,  23  Cal.  508;  58  Ala.  105;  Rogers  v.  Weir,  34  N.  Y.  463.  A 
lien,  once  surrendered,  cannot  be  resumed  at  will,  though  a  new  lien  may 
always  be  created  by  mutual  agreement.     63  Me.  116. 

8  §  124;  48  Ga.  90;  53  Ind.  93;  24  111.  99.  See  Lehman  u-  Skelton, 
40  Ala.  310;  Hale  v.  Barrett,  20  111.  195. 


HIRED   SERVICE   ABOUT   A   CHATTEL  53 

service ;  though,  once  in  clear  default,  our  bailee  becomes 
strictly  liable,  even  for  casual  losses  happening  after  he  should 
have  surrendered  possession.^ 

103.  The  common-law  means  of  enforcing  a  lien  are  some- 
what imperfect ;  for  one  might  hold  or  detain,  and  nothing 
more.  But  the  contract  of  parties,  as  well  as  legislation, 
will  sometimes  confer  the  power  of  sale  on  default.^  A 
power  to  sell,  being  in  derogation  of  common  law,  must 
be  exercised  in  strict  conformity  with  the  contract  or  stat- 
ute permission,  not  greedily,  nor  reckless  of  the  bailor's 
interests,  nor  so  that  the  bailee  shall  gain  a  surreptitious 
advantage  ;  and  the  surplus  of  a  fair  sale  (which  is  usually 
at  auction)  must  be  turned  over,  less  costs  and  the  bailee's 
due  recompense.^ 

104.  Priority  among  liens  must  Sometimes  be  adjudicated ; 
and  especially  where  goods  have  not  intrinsic  value  enough 
to  recompense  all  lien  claimants  in  full.  The  hired  bailee's 
lien  under  bona  fide  possession,  without  notice  of  prior 
claims,  beiug  the  closest,  and  for  the  most  immediate  benefit 
of  the  thing,  should  rank  above  those  by  way  of  subse- 
quent mortgage,  attachment,  execution,  and  the  like ;  un- 
less, indeed,  the  bailment  acceptance  was  upon  some  different 
understanding,    or   the    bailee,    by    some    such   act   as    part- 

1  §  125 ;    Russell  v.  Koeliler,  6G  III.  459. 

Under  many  circumstances  of  bailment  the  hired  bailee  ought  to  give 
his  bailor  notice  when  his  service  is  performed;  and,  at  all  events,  he 
should  heed  a  demand  for  the  thing.  75  Iowa,  294;  Claflin  v.  Meyer,  75 
N.  Y.  260.  Where  a  rightful  and  seasonable  demand  is  made  upon  him, 
the  bailee  if  he  has  a  claim  in  rem  for  unsettled  recompense  ought  prompt!}' 
to  assert  it :  and  so  if  insufficient  recompense  be  tendered  him  ;  that  his 
reason  for  detaining  may  be  understood.  If  he  refuse  to  surrender  unless 
paid  for  what  the  lien  does  not  lawfully  covei-,  he  puts  himself  in  the 
wrong.  See  58  Ala.  Kio;  Roberts  r.  Weir,  34  N.  Y.  4(33  ;  Roberts  v.  Yar- 
boro.  41  Tex.  449  ;  4  B.  cSc  S.  400.  See  also  2  Gray,  369  (bailor's  waiver 
of  right  to  sue). 

2  §  126;  Whitlock  r.  Heard,  13  Ala.  776  ;  Slephenson  v.  Price,  30  Tex. 
715^  Local  legislation  gives  frequently  the  right  of  sale  to  warehouse- 
men, etc.,  as  well  as  carriers.     See  40  N.  H.  88. 

3  lb. 


54  THE    LAW   @F   BAILMENTS 

ing  possession,    1ms    afforded   to   another    party   a    superior 
equity. 1 

105.  As  to  the  general  right  of  recompense  for  valuable  ser- 
vices rendered,  the  simple  employment  of  a  bailee  about  his 
usual  business  will  sufficiently  import  an  agreement  on  the 
bailor's  part  to  pay  what  the  service  was  reasonably  worth. 
But  the  private  arrangement  of  the  parties  themselves,  if 
not  fraudulent,  may  bind  the  bailor  to  remunerate  at  a  stan- 
dard far  above  or  below  what  the  service  ought  in  justice  to 
command.^ 

1  §  127;  21  La.  An.  402 ;  21  Kans.  217  ;  Dobbins  r.  Clark,  59  Ga.  709 ; 
Marseilles  Co.  v.  Morgan,  12  Neb.  66. 

The  bailee's  lien  is  subject  to  prior  liens  ;  as  where  a  chattel,  mortgaged 
for  more  than  its  worth,  is  bailed  for  repair  or  work.  Burrow  v.  Fowler, 
68  Ark.  178. 

2  §  128;  Graves  r.  Smith,  14  Wis.  5,  8;  Southern  Steamship  Co.  v. 
Sparks,  22  Tex.  657.  See  73  N.Y.  156.  The  impolicy  of  allowing  a  bailee 
to  charge  extra  storage  for  his  bailor's  delay  does  not  apply  to  bailments 
expressly  and  originally  for  storage.     53  Fed.  (U.  S.)  401. 

As  to  evidence  and  burden  of  proof,  in  litigation  between  bailor  and 
bailee,  the  law  of  Common  Carriers  (Part  VI,  post),  best  develops  the 
doctrine  by  decided  cases.  Here,  as  elsewhere,  conceding  the  general 
burden  of  proving  culpable  negligence  in  the  bailor,  it  is  frequently  as- 
serted that  the  burden  of  explaining  or  exonerating  himself  rests  upon 
the  bailee,  who  cannot  produce  the  thing,  or  who  produces  it  with  marks 
of  injury  imputing  fault  to  himself  and  not  his  bailor.  Hildebrand  v. 
Carroll,  106  Wis.  324.  But  where  bailee  shows  loss  or  injury  by  an  ex- 
cepted or  excusable  cause,  the  burden  shifts  to  the  bailor  to  show  fault 
on  the  bailee's  part,  as  the  proximate  and  moving  cause  of  the  loss. 
Taussig  V.  Bode,  134  Cal.  260.     See  ante,  12     Part  VI,  post. 


cf 


y 


CHAPTER   III. 

HIRE*    USE   ©F   A    CHATTEL. 


106.  Our  former  classification  may  still  be  conveniently  used 
for  this  chapter  :  I.  Matters  preliminary,  including  delivery  in 
bailment.  II.  Accomplishment  of  the  bailment  purpose. 
III.  Termination  of  the  bailment. 

107.  I.  Matters  Preliminary.  In  the  bailment  for  hired  use, 
the  bailor,  technically  styled  the  "  letter,"  shifts  over  into  the 
party  entitled  to  recompense,  while  the  hirer,  in  return,  be- 
comes bailee.  This  bailment,  like  its  correlative  already 
examined,  the  gratuitous  loan,  contemplates  the  temporary 
beneficial  use  of  a  chattel  which  the  bailee  must  eventually 
return ;  and  the  only  essential  point  of  difference  is  that  in 
the  former  case  the  bailee  was  to  have  the  use  for  nothing, 
while  here  he  is  bound  to  make  recompense  of  some  sort.^ 

108.  The  manner  and  period  of  rightful  hired  use  are  ascer- 
tainable from  the  agreement,  duly  and  voluntarily  made  by 
competent  parties,  as  rationally  interpreted.     The  true   and 

^  §  130.  Compensation  or  mutual  inducement  puts  parties  on  so  much 
more  even  a  footing  and  harmonizes  so  much  better  with  the  average 
expectation  of  mankind,  that  baihnents  for  use  are  much  more  readily 
classed  under  the  jiresent  than  the  former  head.  Cf.  Part  III,  ante. 
Proof  of  possession  with  the  right  to  use  at  pleasure  supports  a  claim  for 
use.     Reilly  v.  Rand,  123  Mass.  215. 

A  sale  "  on  trial  "  (so  called)  with  its  preliminary  bailment  comes 
under  the  present  head.  So  does  the  bailment  for  use  of  a  horse  in  dis- 
tinct consideration  of  its  keep.  Chaniherlin  i'.  Cobb,  32  Iowa,  161.  But 
cf.  Bennett  v.  O'Brien,  37  111.  250.  Where  a  picture  is  loaned  for  an  ex- 
hibition, circumstances  may  or  may  not  render  it  a  bailment  for  mutual 
advantage.  See  Prince  v.  Alabama  Fair,  106  Ala.  340;  Vigo  Society  i: 
Brumfiel,  102  Ind.  1415.  Few  as  are  the  reported  cases,  the  instances  of 
hired  use  are  familiar  :  as  in  the  hire  of  a  sailboat,  of  a  piano,  of  a  sewing 
machine,  of  furniture  or  a  furnished  apartment,  of  rolling  stock  leased  by 
one  railway  to  another.     See  18  Ch.  D.  30  (hired  furniture). 


56  THE   LAW   OF   BAILMENTS 

rational  intent  of  the  bailment  becomes,  thronghont,  onr  gnide 
on  such  points.  ^ 

109.  Upon  the  mere  bailment  contract  of  hire,  which,  unlike 
that  of  mere  loan,  is  upon  sufficient  mutual  consideration, 
each  party  becomes  obliged  to  a  performance  in  the  delivery 
and  acceptance,  whose  breach  gives  the  injured  one  the  right 
of  legal  redress  ;  since  neither  non-feasance  nor  misfeasance  is 
permitted.  But  an  actual  or  constructive  delivery  and  ac- 
ceptance are  needful,  or,  at  least  a  receipt  of  the  thing  in 
bailment,  in  order  that  they  may  stand  on  the  full  footing  of 
bailor  and  bailee,  letter  and  hirer.^ 

110.  II.  Accomplishment  of  the  Bailment  Purpose,  The  hirer's 
duties  are,  chiefly,  to  use  the  thing  with  due  care  and  diligence, 
and  for  no  other  purpose  than  the  letter  may  have  sanctioned, 
expressly  or  by  implication ;  to  deliver  it  back  or  over  at  the 
appointed  time ;  and  to  yield  the  intended  recompense  for 
such  use.  Nor,  as  concerns  third  persons,  should  the  thing- 
be  injuriously  used.^ 

111.  As  to  the  measure  of  care  and  diligence  required,  the 
hirer  for  use  is,  like  all  other  mutual-benefit  bailees,  bound  to 
exercise  ordinary  or  average  care  and  diligence ;  and  for 
nothing  less  tlian  ordinary  negligence,  or  the  failure  to  exer- 
cise such  care  and  diligence  as  persons  of  average  prudence 
bestow  toward  such  property  or  upon  their  own  property 
under  like  circumstances,  is  he,  while  confining  himself  to 
the  terms  of  the  bailment,  legally  responsible.  This,  in  each 
case,  becomes,  as  in  other  bailments,  a  question  of  fact  upon 
all  the  evidence.* 

1  §  131.  Thus,  a  horse  may  be  hired  for  a  certain  time,  or  pro  rata 
for  a  time  at  the  bailee's  discretion,  or  so  as  to  accomplish  a  particular 
journey.  Of  course  the  bailment  use  of  a  thing  for  hire  is  inconsistent 
with  its  consumption.     See  ante,  Part  III. 

2  §  132.     And  see  ante,  11,  22,  78. 
8  §  133. 

*  §  134.  Inevitable  accident  or  superior  force  excuses  the  bailee;  or 
the  natural  deterioration  or  spoliation  of  tlie  tiling;  or  the  sickness  and 
death  of  a  hired  animal;  or  loss  of  the  hired  chattels  by  robbery,  theft,  the 
escape  of  a  hired  animal  and  the  like.  But  where  such  loss,  destruction, 
or  calamity  is  traceable  to  the  bailee's  carelessness  or  fault  —  i.  e.,  to  his 


HIRED   USE   OF   A   CHATTEL  57 

112.  The  instance  of  a  hired  horse  affords  by  far  the  most 
familiar  illustration  in  our  courts  under  the  present  head. 
Now,  unless  the  bailee  took  the  animal  for  too  short  a  time, 
or  under  a  special  arrangement  whereby  the  bailor  was  to 
look  after  his  own  property,  he  ought  to  provide  the  creature 
regularly  with  proper  food  and  drink,  afford  due  shelter  and 
repose,  and,  in  general,  take  reasonable  heed  that  the  animal, 
while  resting,  is  so  fastened  up  that  it  may  not  readily  run 
away  or  be  stolen.  While  putting  the  horse  to  active  use  he 
should  not  harness  carelessly,  overload,  overdrive,  be  heedless 
of  what  he  perceives  to  be  the  creature's  frailties,  nor  fail  to 
supply,  prudently,  wants  essential  to  its  health  and  good  con- 
dition. If  disease  or  bruise  be  discovered  during  the  bailee's 
term,  he  should  be  discreet  in  its  treatment,  and  in  extremity 
call  in  some  farrier  or  expert ;  or  else,  informing  his  bailor 
promptly,  throw  the  responsibility,  as  he  may  generally  do, 
upon  the  owner.  He  should  not  take  dangerous  risks  of 
travel.  Durino-  his  whole  term  of  use  the  bailee  ourfit  to  act 
honorably,  humanely,  and  with  such  reasonable  regard  for 
preserving  the  animal's  value  unimpaired  as  from  prudent  men 
might  be  expected.^ 

misconduct  or  want  of  ordinary  care  and  diligence  as  the  moving  cause 
—  the  bailee  is  answerable  for  the  loss  or  injury.  As  to  the  civil  or  con- 
tinental law  on  this  subject,  see  §  135. 

^  §  136.  The  hirer  of  a  horse  has  in  numerous  instances  been  deemed  want- 
ing in  ordinary  diligence.  As,  where  the  loss  is  caused  by  his  improper 
feeding  or  omitting  to  feed.  Handford  r.  Palmer,  2  B.  &  B.  o59;  Eastman 
V.  Sanborn,  .3  Allen  (Mass.),  594.  And  see  Cross  v.  Brown,  41  N.  H.  283. 
Or  by  overdriving  and  overheating.  Edwards  t'.  Carr,  13  (iray,  2o4  ;  Went- 
wort'h  c.  McDuffie,  48  N.  H.  302;  Rowland  r.  Jones,  73  N.  C.  52;  Ray 
V.  Tubbs,  5;)  Vt.  688;  Buis  r.  Cook,  60  Mo.  391.  Or  by  overloading. 
See  M'Neiil  v.  Brooks,  1  Yerg.  (Tenn.)  73  ;  3  Barb.  380.  Or  by  trying  to 
ford  a  swollen  stream.  United  Co.  v.  Cleveland,  44  Kan.  167.  Or  by 
securing  the  horse  improperly.  See  Jackson  v.  Robinson,  18  B.  INIon.  1. 
Or  by  continuing  his  journey  carelessly,  or  administering  quack  remedies, 
after  he  finds  that  the  animal  is  sick.     Thompson  ik   Harlow,  31  Ga.  348. 

But  circumstances,  such  as  the  length  of  term  of  use,  and  the  opportu- 
nity of  summoning  the  bailor,  may  be  material.  And  so  long  as  the 
hirer  fairly  behaves,  on  the  whole,  and  faithfully  observes  the  terms  of 
his  engagement,  it  is  the  bailor  and  not  he  who  must  bear  all  loss  of  the 


58  THE  LAW   OF  BAILMENTS 

113.  Other  illustrations  under  the  present  head  are  furnished 
by  the  latest  English  and  American  decisions,^ 

114.  As  to  elements  -which  may  affect  such  issues,  much,  as 
in  other  baihnents,  must  depend  upon  the  nature  of  the  chattel, 
its  incidental  exposure  to  loss  or  destruction,  and  its  actual 
condition  at  the  time  of  delivery.  Nor  should  the  hii-er's  per- 
sonal reputation  be  wholly  ignored,  nor  his  skill  and  oppoitu- 
nity  for  good  performance,  as  brought  to  the  bailor's  knowledge. 
And  naturally  the  bailee's  skill  and  personal  qualifications 
are  less  likely  to  be  considered  here  than  in  one's  hire  of 
services  upon  his  chattel,  for  one  may  be  a  hirer  as  tlie  person 
answerable,  rather  than  the  active  and  sole  user  of  the  thing.^ 

115.  Where  the  hirer  transcends  the  bailment  instead  of 
keeping  within  the  terms  of  the  bailment,  as  every  bailee 
ought  to  do,  even  though  he  has  promised  a  recompense,  he  may 
render  himself  liable  for  the  thing  beyond  the  limit  already 
laid  down.  In  brief,  putting  the  chattel  to  a  use  more  exten- 
sive or  materially  different  from  that  mutually  agreed  upon  is 
deemed  a  breach  of  faith,  on  the  hirer's  part,  so  gross  as,  in 
most  instances,  to  make  him    very  strictly  answerable,  and 

animal  in  the  course  of  its  use.  3  Barb.  (N.  Y.)  380  ;  60  Mo.  391  ;  67 
III.  272  ;  19  S.  C.  30.  So,  too,  injuries  which  result  from  the  horse's  own 
nervous  or  vicious  nature  cannot  be  visited  upon  a  hirer  who  is  ordinarily 
prudent  and  careful  in  using  the  animal.  Stacy  v.  Ice  Co.,  8±  Wis.  61-4; 
45  Minn.  85. 

^  See  as  to  the  loan  of  a  picture  or  other  chattel  for  a  loan  exhibition, 
a  county  fair,  and  tlie  like,  Prince  v.  Alabama  Fair,  106  Ala.  340;  Vigo 
Society  v.  Brumfield,  102  Ind.  146.  If  mutual  advantage  is  to  be  thus 
derived  (such  as  competition  for  a  prize  or  advertising)  the  standard  for 
the  bailee  should  be  ordinary  care  and  diligence,  but  if  the  bailment  be 
solely  for  the  benefit  of  the  bailee — i.  e.  the  exposition  —great  care  (in 
the  absence  of  special  stipulation)  should  be  the  criterion.     Cf.  Part  III. 

2  §  138.  Any  person  whom  the  letter  plainly  perceives  to  be  physi- 
cally or  mentally  incapable,  as  a  young  child,  an  imbecile,  a  paralytic,  or 
one  who  has  lost  an  arm,  cannot  be  presumed  the  hirer  of  a  horse  or  a 
boat  to  manage  in  person  with  average  skill.  But  it  is  held  that  one  who 
makes  a  business  of  letting  horses  on  hire  may  well  accommodate  his 
customers  so  far  as  to  risk  injury  to  the  thing  he  lets  out,  trusting  to  the 
hirer's  pecuniary  responsibility  for  fulfilling  his  contract.  Mooers  v. 
Larry,  15  Gray  (Mass.),  451. 


HIRED   USE   OF   A   CHATTEL  59 

sometimes  absolutely  so,   for  all  loss   and  injury  thereupon 
ensuing.^ 

116,  Yet  doubtful  cases  may  thus  arise,  where  the  alleged 
deviation  or  breach  of  duty  was  not  wilful,  reckless  or  wanton, 
nor  even  without  some  justifying  conditions ;  and  here  we 
find  that,  the  bailee,  if  all  the  while  using  ordinary  or  aA'er- 
age  care  of  the  thing  is  not  visited,  in  case  of  loss  or  injury, 
mth  the  harsh  consequences  of  a  positive  misappropriation .^ 

1  §  139.  Thus,  it  is  held,  that,  if  one  hires  a  horse  for  a  sj^ecified  jour- 
ney, and  drives  it  beyond  the  place  designated,  or  on  a  different  course, 
he  so  takes  upon  himself  the  consequences  that  inevitable  accideut  does 
not  excuse  him  nor  the  horse's  fault  in  running  away ;  for  here  the  mis- 
use or  wrongful  deviation  of  the  hirer  is  treated  as  the  occasion  of  the 
loss  or  damage.  Lucas  v.  Trumbull,  15  Gray  (Mass.),  306  ;  Wentworth  v. 
McDuffie,  48  N.  H.  402;  17  N.  Y.  Supr.  474;  38  Wis.  693;  Ray  v. 
Tubbs,  50  Vt.  488.  So,  too,  where  one  who  hires  a  horse  for  a  fixed 
time  continues  to  use  it  much  longer;  or,  who,  engaging  animals  for  a 
certain  moderate  purpose,  puts  them  to  a  different  and  more  exhausting 
use.  Stewart  c.  Davis,  31  Ark.  518;  De  Voin  v.  Lumber  Co  ,  64  Wis. 
616.  And  see  as  to  a  minor,  who  cannot  be  sued  for  breach  of  contract, 
as  in  careless  driving  to  the  place  agreed  upon,  but  is  held  liable,  because 
of  a  tort,  in  driving  wrongfully  elsewhere.  Homer  v.  Thwing,  3  Pick. 
(Mass.)  492. 

In  general,  at  common  law  a  hirer  engages  to  put  the  thing  hired  to 
no  other  use  than  that  for  which  it  was  hired;  if  he  does  so,  and  the 
thing  is  injured,  lost  or  destroyed,  he  is  liable  in  trover.  Malone  v.  Robin- 
son, 77  Ga.  719.  The  letter's  suit  in  trover  is  liberally  regarded  in  such 
cases;  not  perhaps  for  a  conversion,  in  the  strictest  ancient  sense,  but  at 
least  because  of  a  tort.  See  Wentworth  v.  ^McDuffie,  48  N.  H.  402  ; 
Lane  v.  Cameron,  38  Wis.  603  ;  Lucas  v.  Trumbull,  15  Gray  (ALiss.),  306; 
108  N.  C.  606  ;  5  B.  &  C.  609.  And  see  §  140,  as  to  the  right  to  dispossess, 
or  to  sue  in  case  or  trespass  in  certain  cases  of  this  sort. 

2  §§  140,  141.  Whatever,  in  such  cases,  may  have  been  the  expression 
of  the  court,  the  evidence,  in  almost  every  instance,  shows  the  hirer  to 
have  been  negligent  in  fact,  or  even  wilfully  or  wantonly  misconducting 
himself;  he  was  overdriving,  perhaps,  or  breaking  the  Sunday  laws,  or 
destroying  or  ruining  the  property.  Hence,  the  assertion  of  an  absolute 
responsibility  under  circumstances  of  unpermitted  use  becomes,  in  re- 
ality, the  convenient  means  of  confirming  a  righteous  verdict  against 
a  defendant  who  has  otherwise  hurt  his  case.  On  the  other  hand, 
it  is  not  difficult  to  conceive  that  technical  misuse  might  occur  with- 
out an  actual  abuse  of  the  terms  of  hire,  and  where  it  would  be  harsh 


60  THE   LAW   OF   BAILMENTS 

In  such  cases  a  fair  interpretation  of  the  baibnent  may  often 
permit  of  a  discretionary  deviation  or  rather  enlargement  of 
the  bailment  term  stated.^ 

117.  (The  hirer's  attempt  to  sell,  pawn,  or  otherwise  transfer 
full  title  in  the  thing  hired,  without  permission,  by  way  of 
misappropriation,  is  a  violation  of  duty  so  palpable  as 
justifies  the  bailor  in  treating  the  bailment  as  ended,  though 
it  were  for  a  fixed  term,  and  in  pursuing  the  chattel  at 
once  as  his  own  ;  and  this,  too,  would  appear  to  render 
the  bailee  absolutely  accountable  in  the  premises.  The  letter 
may,  in  such  event,  sue  in  trover  without  making  a  demand.^ 

to  visit  deviation  with  such  disastrous  penalties.  Both  Sir  William 
Jones  and  Story  suggest  possible  exceptions  to  tlie  doctrine  that  one  in 
mora  must  respond  absolutely;  which  position  they  fortify,  not  byPothier 
and  the  civilians  alone,  but  by  the  analogies  of  the  common  law.  See 
Story,  Bailm.  §  -113  c.  In  truth,  the  leaven  of  common  sense,  which  keeps 
our  law  in  constant  ferment,  is  here  at  work,  recalling  the  injustice  of 
visiting  blamewortliy  and  blameless  deviation  witii  the  same  penalties  of 
absolute  or  insurance  accountability.  One  hires  a  horse  for  a  given  jour- 
ney, but  unexpectedly  encounters  a  friend,  and  turns  off  to  visit  him, 
using,  all  the  while,  a  prudent  care  of  the  animal ;  or  he  finds  obstructions 
in  the  road,  and  changes  the  point  of  destination  to  another  which  must 
have  equally  suited  his  bailor,  or  he  misses  his  way.  Such  instances  are 
matters  of  every-day  occurrence.  And  how  few  imagine,  in  hiring  a 
horse  or  a  sailboat,  that  for  a  little  longer  or  a  little  diiferent  ride,  they  in- 
cur an  extra  risk,  beyond  that  of  paying,  possiblj',  an  extra  hire.  See,  in 
confirmation  of  this  writer's  views  (though  the  conclusion  may  have  been 
reached  by  a  different  process  of  reasoning),  Spooner  v.  INIanchester, 
133  Mass.  270;  Ilarvey  v.  Epes,  12  Gratt.  (Va.)  153.  A  justifiable  devia- 
tion ''  of  necessity  "  is  plainly  recognized  under  the  law  of  carriers.  And 
it  has  been  lately  laid  down,  positively,  that  to  establish  conversion  by 
the  bailee  the  deviation  must  be  to  such  an  extent  as  to  assert  dominion 
or  ownership  inconsistent  with  the  bailor's  title.  Direct  Nav.  Co.  v.  David- 
son, Tex.  Civ.  1903.     But  cf.  as  to  a  mere  borrower,  4  Fed.  (U.  S.)  152. 

^  §  141.  A  just  interpretation  of  the  contract  of  hire  may  often  en- 
large the  scope  of  discretionary  use  permitted.  Judge  Story  has  sug- 
gested another  form  of  defence  sometimes  available  —  viz.  that  the  loss 
must  have  occurred  with  or  without  such  deviation.  Story,  Bailm.  §§  40.0, 
413-413  d.  And  see  Farkas  v.  Powell,  86  Ga.  800.  But  cf.  13  Gray 
(Mass.),  .306.     And  .see  3  Barb.  (N.  Y.)  380;    115  Mass.  326. 

2  §  142;  Marner  «.  Banks,  16  W.  R.  (C.  P.)  62 ;  Johnson  v.  Willey,  46 
N.  H.  75  ;  Dunham  v.  Lee,  24  Vt.  432. 


HIRED   USE   OF  A  CHATTEL  61 

But  with  the  hirer's  assignment  of  his  beneficial  interest 
alone,  the  rule  appears  to  be  different ;  and  such  a  transfer, 
if  made  mtli  due  reservation  of  the  bailor's  permanent  owner- 
ship, ought  not  to  be  treated  as  a  conversion,  but  rather 
upheld,  unless  the  use  stipulated  was  to  be  strictly  personal 
or  precarious,  and  assignment  without  the  owner's  assent 
was  forbidden.^ 

118.  Illegality  and  turpitude  going  to  the  foundation  of  a 
baihnent  contract  for  use  puts  the  party  who  is  out  of  posses- 
sion, and  seeks  redress,  necessarily  at  disadvantage.  And 
any  letter  of  a  thing,  who  would  avail  himself  of  his  hirer's 
fraud  or  unlawful  conduct,  must  himself  be  free  from  blame.^ 

119.  As  to  remedies  and  the  burden  of  proof  in  case  of  loss 
or  injury  the  rule  elsewhere  discussed  would  seem  to  apply. 
What  constitutes  due  care  and  diligence  is  usually  for  ..the 
court  to  rule;  and  whether  the  bailee  has,  upon  all  the 
proof,  exercised  sucli  due  care  and  diligence,  is  for  the  jury 
to  determine.^ 

120.  The  bailee's  responsibility  for  his  sub-users  or  agents  in 
a  case  of  hired  use  may  afford  an  interesting  discussion,  in  the 
absence  of  authoritative  pronouncement  at  our  law.  As  tlie 
hirer  must  answer,  not  only  for  loss  and  injury  of  tlie  thing 
by  himself  in  person,  but  for  loss  and  injury  which  others 
may  have  occasioned  where  lie  was  culpably  remiss,  so  is  he 
treated  as  tlie  party  ultimately  responsible  to  his  letter  for  the 
injurious  acts  of  those  whom  he  voluntarily  admits,  so  to 
speak,  to  the  use  of  the  thing.     And  this  responsibility  ap- 

1  Nash  V.  IMosher,  19  Wend.  (X.  Y.)  431;  10  Pick.  (Mass.)  291; 
Bailey  r.  Cobb,  34  N.  H.  29. 

^  §  143.  Cf.  as  to  letting  a  horse  on  Sunday,  Frost  v.  Plumb,  40 
Conn.  Ill;  Stewart  v.  Davis,  31  Ark.  518;  Home  v.  INIeakin,  115  JNIass. 
326;  Logan  v.  Mathews,  (5  Penn.  St.  417.  Where  the  turpitude  is  not 
fundamental,  but  the  bailee,  who  hires  a  horse  on  Sunday  for  a  permis- 
sible use,  puts  the  animal  to  a  secular  and  prohibited  use,  tlie  letter's 
remedy  is  clear.     Fisher  v.  Kyle,  27  Mich.  454. 

8  §  144.  Rowland  v.  Jones,  73  N.  C.  52;  ante,  12,  105  note.  Cf.  17 
N.  Y.  Supr.  474  ;  Carrier  v.  Dorrance,  19  S.  C.  30.  As  to  the  letter's 
■waiver  of  his  remedy,  see  Lucas  r.  Turnbull,  15  Gray  (Mass.),  30!J;  Pig- 
bee  V.  Coombs,  64  Mo.  529;  Austin  v.  Miller,  74  N.  C.  274. 


62  THE  LAW  OF  BAILMENTS 

plies  not  only  to  technical  servants  or  one's  sub-agents 
employed  about  the  thing,  but  to  sub-users,  to  all  such  as  the 
hirer  may  allow  to  participate  in  the  benefit  he  enjoys  ;  in 
general  to  domestics,  members  of  his  family,  boarders,  guests, 
and  the  like.^  But  whether,  after  all,  our  common  law  differs 
essentially  from  the  Roman  law,  in  this  respect,  and  does  not 
really  recognize  the  usual  limits  of  the  rule  of  agency,  else- 
where discussed,  may  be  doubted.^ 

121.  The  liability  of  joint  hirers  may  arise  in  a  case  of  cul- 
pable carelessness  where  two  jointly  hire  and  either  or  both 
occasion  the  mischief.^ 

^  §  145.  In  Story,  Bailin.  §§  400,  401,  the  superiority  of  the  common 
law  over  that  of  Justinian's  age  is  asserted  in  this  respect. 

2  See  ante,  9,  86.  Here,  as  contrasted  with  the  loan  for  use,  we  are 
considering  a  bailment  use  which  is  not  strictly  personal  in  most  cases, 
but  may  be  shared  in  by  otliersupon  the  bailee's  contract  for  recompense. 
For  this  writer's  discussion  of  the  subject,  in  advance  of  positive  decision, 
see  §§  145-147.  Towards  the  conclusion  that  the  rule  of  agency  as  in 
other  bailments  limits  a  hirer's  responsibility,  where  his  sub-user  deviated 
or  acted  wrongfully,  unless  he  himself  was  otherwise  at  fault,  see  Holder 
V.  Soulby,  8  C.  B.  n.  s.   254;  S  E.  &  B.  144  ;  6  Daly  (N.  Y.),  33. 

To  take  the  instance  of  a  horse  and  carriage  driven  by  the  hirer's 
servant,  it  is  admitted  that  for  the  driver's  careless  or  reckless  driving 
not  positively  wilful  or  wanton,  the  hirer  must  respond,  upon  the  usual 
principle.  §  147.  McDonald  v.  Snelling,  14  Allen  (Mass.),  290;  Philadelphia 
R. (/•.  Derby,  14  How.  (U.S.)  4G8.  But  the  decisions  show  a  repugnance  to 
holding  the  hirer  liable  for  his  servant's  wanton,  malicious,  and  criminal 
acts  infficting  injury,  or  where  he  took  the  horse  and  carriage  without  per- 
mission or  wantonly  deviated;  but  to  place  the  liability  upon  the  servant 
personally,  unless  the  master  was  at  fault  in  employing  him  or  otherwise 
contributed  to  the  wrong.  And  this,  too,  complies  with  the  rule  of  agency. 
See  L.  R.  2  Q.  B.  534;  Storey  v.  Ashton,  L.  R.  4  Q.  B.  470;  Evansville 
R.  V.  Baum,  26  Ind.  70;  Vauderbilt  v.  Turnpike  Co.,  2  N.  Y.  479  ;  2  J\lich. 
519.  But  in  the  late  English  case  of  Coupe  Co.  v.  Maddick  (1891),  2  Q. 
B.  413,  which  was  admitted  to  be  novel,  the  court  held  the  liirer  liable 
for  injury  of  the  horse  and  carriage  where  the  hirer's  own  driver  had 
deviated  from  directions  and  driven  in  another  direction  for  his  own 
purposes.  The  court  conceded  that  for  injury  to  some  third  party  the 
decision  would  have  been  different. 

3  §  148.  4  Esp.  229  ;  2  Speers  (S.  C),  495.  But  if  only  one  hires, 
while  the  other  rides  as  a  mere  passenger  or  friend,  taking  no  part  in  con- 
trolling, it  is  the  hirer  only  who  should  respond.     Dyer  v.  Erie  R.,  71 


HIRED  USE   OF   A   CHATTEL  63 

122.  For  injury  done  to  a  third  person,  the  bailee  for  hired 
use  is  responsible  as  in  other  bailments  for  recompense ; 
and  with  respect  to  third  persons  and  the  general  public  one 
should  use  the  hired  chattel  with  such  honor  and  general  dis- 
cretion and  care,  as  to  injure  neither  the  person  nor  the  prop- 
erty of  any  one  wantonly  or  negligently.^ 

123.  The  letter's  duties  or  the  hirer's  rights  occasion  very  little 
litigation.  As  between  himself  and  his  letter,  the  hirer 
acquires  an  exclusive  right  to  use  the  thing  conformably  to 
the  mutual  understanding,  without  hindrance  or  molestation, 
during  his  term,  so  long  as  he  properly  behaves.  If  the  term 
be  more  than  a  precarious  one,  terminable  at  pleasure,  the 
letter  should,  after  once  delivering  the  thing,  refrain  from 
whatsoever  acts  tend  to  interrupt  his  bailee's  peaceable  posses- 
sion and  unobstructed  use.  Such,  too,  is  the  doctrine  in  hire 
for  a  precarious  term  ;  only  that,  by  virtue  of  his  right  to  put 
an  end  to  the  bailment  at  any  time,  the  letter  may  retake 
possession  without  regard  to  the  hirer's  good  or  bad  conduct.^ 

124.  How  far  a  warranty  against  incumbrances  and  for  quiet 
enjoyment  is  implied  in  a  bailment  for  hired  use,  on  the  letter's 
part,  our  common  law  is  silent.  The  civilians  assert  that  an 
obligation  exists  sufficient,  at  all  events,  to  indemnify  the  hirer, 
should  a  stranger  legally  put  him  out  of  possession.  Even  the 
lender  of  a  thing  must  act  honorably,  delivering  nothing  as  his 
property  which  he  knows  another  owns  and  may  reclaim  ;  and, 
at  our  law,  the  hirer  for  a  term,  whom  another,  having  a  better 
title  than  his  letter,  lawfully  dispossesses,  ought  in  fairness, 

N.  y.  228.  But  wliere  one  races  a  horse  to  death  while  the  other  rider 
abets  hira,  it  is  otherwise,  and  so  with  joint  contributors  generally  to  a 
mischief  or  injury.  Banfield  v.  Whipple,  10  Allen  (Mass.),  27.  Cf.  -4  B. 
&  C.  223 ;  b  Cush.  (Mass.)  592. 

^  §  149.  And  see,  ante,  87.  Where  the  hirer  causes  culpably  such  in- 
jury to  another  it  is  he  and  not  the  letter  or  owner  who  should  respond 
in  damages.     Smith  v.  Bailey  (1891),  2  Q.  B.  403. 

-  §  150.  Hickok  v.  Buck,  22  Vt.  149.  Receiving  the  chattel  again  for 
some  temporary  purpose,  the  letter  is  bound  to  return  it  when  that  pur- 
pose is  accomplished  ;  and  his  creditors  should  not  intervene  to  deprive 
the  hirer  of  his  rights.  2  Taunt.  2G8 ;  Hartford  v.  Jackson,  11  N.  H. 
145. 


64  THE   LAW   OF   BAILMENTS 

unless  he  specially  assumed  such  risks  of  title,  to  be  able  to 
sue  such  letter  as  for  breach  of  the  bailment  contract,  or  to 
recoup  his  damage  against  the  claim  of  compensation.^ 

125.  How  expenses  on  the  thing  should  be  borne  is  a  matter 
of  common  sense  and  the  just  intendment  and  expectation  of 
the  parties.  Without  an  undertaking  sliown  by  express  con- 
tract or  usage,  the  hirer  is  not,  presumably,  bound  to  keep  the 
thing  in  repair,  and  yet  he  must  pay  his  agreed  recompense.^ 
The  unforeseen  and  extraordinary  expense,  as  to  which  mutual 
understanding  never  probably  closed,  the  law  may  well  favor 
placing  upon  the  letter,  if  his  revereionary  interest  will  be  the 
more  valuable  for  it,  and  the  hirer  was  not  at  fault ;  but  other- 
wise if  the  hirer  was  at  fault,  or  gains  all  the  substantial 
benefit  by  the  outlay.^ 

126.  The  letter  is  responsible  if  he  lets  injuriously,  by  bestow- 
inof  for  hire  a  chattel  which  he  knows  is  unsuitable  for  the 
bailment  purpose.*  Upon  such  an  issue,  the  superior  knowl- 
edge of  the  bailor  may  be  presumed  such  that  he  is  bound,  if 
he  lets  at  all,  to  give  the  hirer  knowledge  of  defects  or  faults 
in  the  thing,  not  obvious,  which  may  cause  injury  to  the  hirer 
or  to  third  parties,  in  course  of  the  bailment.  The  ground  of 
liability  appears   to  be  not  so  strictly  a  warranty  as  that  the 

^  §  124.  Every  common-law  lease  of  land  imports  a  covenant,  on  the 
lessor's  part,  for  quiet  enjoyment.  But  for  tortious  disturbance  or  dis- 
possession by  a  stranger,  the  lessee  must  liave  recourse  to  his  remedy 
against  the  wrong-doer. 

2  §  125  ;  Central  Trust  Co.  v.  Wabash  R.,  50  Fed.  857 ;  39  Hun 
(N.  Y.),  617  ;  2  B.  &  B.  359.  The  rule  of  the  civil  law  appears  to  have 
been  different  in  this  respect,     lb. 

^  Jones  (1.  Morgan,  90  N.  Y.  4.  But  the  pressure  for  immediate  out- 
lay should  be  strong,  and  opportunity  should  be  wanting  for  previous  con- 
sultation with  his  bailor,  to  justify  sucli  bailee  in  expending  largely 
without  in  some  way  securing  permission.  Where  the  lender  was  in  fault, 
as  in  letting  to  hire  a  sick  animal,  the  needful  expense  borne  should  un- 
questionably be  put  upon  him.  §  152.  3  Barb.  (N.  Y.)  380;  49  X.  J.  L. 
682  ;  1  Moo.  &  R.  23-1.     And  see  next  section. 

*  §  153.  Home  >\  Meakin,  115  Mass.  320  (as  in  letting  a  vicious  horse 
or  a  defective  carriage  or  harness);  Hadley  v.  Cross,  3i  Vt.  586  ;  Fowler 
V.  Lock,  L.  R.  7  C.  P.  272.  And  see  59,  anle.  The  relation  of  bailor  and 
bailee  should  be  here  distinguished  from  that  of  master  and  servant. 


HIRED  USE  OF  A  CHATTEL  65 

hirer  must  trust  to  the  letter's  private  knowledge  of  the  thing's 
intrinsic  qualities  ;  for,  where  the  injury  to  the  hirer  is  caused 
by  some  hidden  defect  in  the  chattel,  which  careful  examination 
could  not  have  disclosed,  the  letter  is  excused.  Doubtless,  a 
hirer  who  would,  in  his  action,  recover  damages  for  his  letter's 
negligence  ought  not  to  appear  wanting  in  ordinary  diligence 
to  avert  the  injury  complained  of.^ 

127.  As  against  the  public,  a  hirer's  right  of  action  is  more 
extensive  than  a  borrower's  ;  and  his  special  property  in  the 
thing,  founded  in  valuable  consideration,  enables  him  to  sue 
all  third  parties  in  his  own  name  for  damages  suffered  in 
respect  of  the  thing  while  in  his  rightful  possession,  whether 
it  be  in  tort  or  for  breach  of  some  privity  with  him.  It  is  no 
excuse  to  the  tortious  invader  of  a  hirer's  rights  that  the  letter 
has  not  interposed,  nor  the  hirer  made  good  the  damage .^ 
And,  if  the  hirer  has  done  nothing  so  inconsistent  with  the 
undertaking  as  to  justify  his  letter  in  treating  the  bailment  as 
at  once  ended,  and  the  bailment  is  not  precarious,  the  letter 
cannot,  as  it  appears,  interpose  to  sue  the  stranger  himself. 
At  all  events,  the  hirer  is,  under  these  circumstances,  the 
proper  party  to  sue  in  trover  or  replevin,  while  case  would  be 
the  letter's  technical  remedy  under  the  old  practice,  as  for  an 
injury  to  the  reversion.  But,  if  the  hirer  recover  full  damages, 
he  should  satisfy  his  bailor  from  the  fund.^ 

1  Iladley  v.  Cross,  31  Vt.  58(5.     Cf.  AVindle  v.  Jordan,  75  Me.  U9. 

A  bailee  for  hired  use  who  ascertains  some  dangerous  defect  in  the 
thing  ought  either  to  repair  it  or  inform  the  letter  and  put  the  responsi- 
bility upon  him;  and  he  should  not  continue  to  use  what  lie  perceives  is 
dangerously  defective.  Higman  v.  Camody,  Ala.  (1896).  And  see  49 
N.  J.  L.  682. 

2  §  154.  See  ante,  60;  McGill  v.  Monette,  37  Ala.  49;  86  Ala.  372; 
48  Barb.  (X.  Y.)  339;  Woodman  v.  Nottingham,  49  N.  H.  387;  Brewster 
V.  Warner,  136  Mass.  57;  Hopper  v.  Miller,  76  N.  C.  402;  White  v. 
Bascom,  28  Vt.  268;  119  Fed.  (U.  S.)  487  (leased  cars). 

3  §  154;  18  N.  H.  457;  4  Jones  (N.  C),  139. 

In  a  proper  case,  the  court  will  so  control  the  fund  recovered  in  dam- 
ages by  the  hirer,  as  to  secure  the  bailor's  share  by  way  of  revprsionary  in- 
terest. See  11  C.  B.  n.  s.  850;  54  Barb.  (X.  Y.)  417.  Wliereve/the 
bailment  may  rightfully  terminate,  the  bailor  may  sue  the  aggressor  by 

5 


66  THE   LAW  OF   BAILMENTS 

128.  By  special  contract,  not  only  may  the  use  of  the  thing 
be  restrained  as  to  time  or  method  of  enjoyment,  but  the 
bailor  may  gain  security  against  stated  perils,  or,  indeed, 
against  all  accidental  damage  whatsoever.^  For  public  policy 
does  not  forbid  such  an  assumption  of  risks  by  the  bailee. 
Any  special  stipulation,  in  short,  which  does  not  militate 
against  sound  policy  and  good  morals  may  be  made  by  the 
bailment  parties  ;  and  this,  as  in  other  bailments,  whether  it 
lessens  or  enhances  the  usual  risks  of  the  bailee  ;  but  it  must 
be  established  by  proof .^ 

129.  III.  Termination  of  the  Bailment.  This  bailment  may  ter- 
minate in  a  variety  of  ways,  like  that  of  a  gratuitous  loan  for 
use  :  by  accomplishment  of  the  bailment  purpose  or  expiration 
of  the  period  of  hire ;  by  the  thing's  entire  loss  or  destruc- 
tion ;  by  rescission  of  the  contract,  whether  by  mutual  consent 
or  because  of  misuse  or  other  gross  violation  of  duty  by  the 
one  party,  of  which  the  other  rightfully  avails  himself ;  and 
by  operation  of  law,  as  where  the  hirer  becomes  full  owner  of 
the  thing.  Whatever  the  method  of  termination,  the  bailment 
parties  are  not  absolved  from  their  past  obligations,  but  must 
make  adjustment  upon  the  usual  contract  principles.^ 

130.  As  for  putting  hirer  or  letter  in  default,  if  it  be  uncertain 
whether  a  bailment  for  hired  use  had  terminated  or  no,  the 
bailor  should,  before  regarding  his  bailee  as  in  default,  make 

virtue  of  such  termination.  IS  N.  H.  457  ;  7  Cow.  (N.  Y.)  752  ;  67  X.  C. 
107.  A  full  recovery  by  bailor  or  bailee  bars  the  other  party's  action  ; 
and  where  bailor  and  bailee  are  in  accord  as  to  which  shall  sue,  the  injur- 
ing party  cannot  complain.  §  155;  136  Mass.  57;  Dumas  v.  Hampton,  58 
N.  H.  134. 

1  §  155;  Collins  y.  Bennett,  40  N.  Y.  490;  Harvey  i;.  Murray,  1-30 
Mass.  377;  Austin  v.  Miller,  74  N.  C.  274;  Chicago  R.  v.  Pullman  Car 
Co.,  139  U.  S.  79  ("all  accident  or  casualty")  63  Ilun  (N.  Y.),  632. 

2  §  155.  But  in  contracts  so  harsh,  the  intention  of  the  hirer  should 
be  manifest  by  apt  words,  which  semhle  was  hardly  true  of  136  Mass.  377. 
Cf.  Young  V.  Leary,  135  N.  Y.  569  ;  3  Barb.  (N.  Y.)  380;  .56  Me.  121; 
22  ]\Io.  187.  And  as  to  an  express  guaranty  by  a  third  person,  see  54 
Minn.  6. 

8  §  156.  As  to  the  effect  of  a  hirer's  death  in  course  of  the  bailment 
mutual  intendment  should  determine,  where  the  hire  was  not  strictly 
personal  to  the  hirer.     lb. 


HIRED   USE   OF  A   CHATTEL  67 

a  demand  or  notify  him  to  return  the  thing.  But  no  demand 
or  notice  is  needful  as  the  preliminary  of  bringing  his  suit 
where  the  bailment  was  distinctly  fixed  for  a  certain  time, 
and  the  jjeriod  has  lapsed  without  the  grant  of  further  exten- 
sion ;  nor  where  the  thing  has  been  converted  wrongfully  or 
destroyed.^  On  the  other  hand,  the  bailee  has  the  correspond- 
ing duty  of  tendering  the  thing  back  and  offering  whatever 
recompense  may  be  just.  Where  no  duration  of  the  term  was 
agreed  upon,  the  bailment  may  be  terminated  at  the  will  of 
either  party .^ 

131.  The  hirer  has  two  general  duties  to  perform,  upon  ter- 
mination of  the  present  bailment :  (1)  to  deliver  the  thing 
back  or  over,  which  is  most  commonly  to  restore  it  to  his 
letter;  (2)  to  make  final  recompense  for  its  use,  if  not  made 
in  advance. 

(1)  The  thing  should  be  restored  in  as  good  plight  as  it 
was  when  received,  except  for  that  deterioration  which  ensues, 
in  the  course  of  using,  from  ordinary  wear  and  tear,  and  for 
any  injury  or  loss  which  may  have  occurred  without  culpable 
negligence  or  misconduct  on  the  hirer's  part.  And  the 
delivery  should  be  promptly  made,  to  the  letter  personally, 
or  to  his  agent  duly  empowered,  his  personal  representative, 
or  transferee,  according  to  the  circumstances.^  (2)  Recom- 
pense for  the  use  of  the  thing,  which  is  commonly,  but  not 
of  necessity,  in  money,  ought  to  be  duly  rendered  in  accord- 
ance with  the  hirer's  undertaking;  and  this,  doubtless,  may 
have  involved  payment  in  advance,  though  recompense  when 
the  bailment  ends  is  more  common ;  or  again  it  may  be  by 
periodical  payments.  Definite  agreement  may  have  fixed  a 
definite  compensation ;  otherwise,  that  is  due  which  reason 
and  usage  prescribe.^ 

1  §157;  Learned  Co.  r.  Fowler,  Ala.  (1896) ;  21  Ala.  151;  Negus  v. 
Simpson,  99  Mass.  388 ;  Ross  v.  Clark,  27  Mo.  549 ;  Morse  v.  Crawford, 
17  Vt.  499. 

2  §  158,  159  ;an<e,  61. 
8  §  159. 

^  §  160.  As  to  the  Roman  rule  of  apportionment,  see  ib. ;  United 
States  V.  Shea,  152  U.  S.  178. 


68  THE   LAW   OF   BAILMENTS 

132.  The  hirer  should  volunteer  no  claim  of  title  adverse  to 
his  letter  on  beluilf  of  himself  or  another,  nor  hire  under  a 
title  which  he  knows  to  be  infirm  and  then  set  up  the  in- 
firmity against  his  bailor  afterwards ;  though,  like  any  other 
bailee,  he  may  justifiably  protect  himself  against  claims  of 
ownership,  preferred  by  third  persons,  which  have  been  so 
brought  to  his  notice  while  he  holds  custody,  that  he  cannot, 
without  peril,  ignore  them.^  The  actual  accomplishment  of 
the  bailment  purpose,  usage,  or  the  parties'  express  contract, 
may  determine  when  the  hirer  is  bound  to  redeliver ;  other- 
wise redelivery  should  promptly  follow  the  letter's  rightful 
demand. 2 

133.  As  to  paying  recompense  and  indemnifying,  a  hirer  who 
returns  the  thing  before  his  term  has  expired,  need  not  pay 
hire-money  beyond  the  time  the  owner  lets  it  anew  or  sells  it.^ 
A  hirer  at  fault  may  doubtless  have  to  make  good  the  damage 
occasioned  by  his  remissness,  in  addition  to  giving  the  prom- 
ised recompense.  Yet  our  law  is  commonly  satisfied  with 
making  the  injured  party  whole  under  his  contract ;  and  on  a 
familiar  principle,  applied  in  other  relations  of  life,  he  who 
pays  as  for  a  total  loss  or  destruction  of  the  thing  ought 
to  be  subrogated  to  the  rights  of  the  former  owner.'* 

1  §  159;  ante,  61;  Davies,  ex  parte,  19  Ch.  D.  80;  10  C.  B.  n.  s.  SCO 
(demand  of  a  subsequent  mortgagor).  See  Erwin  v.  Arthur,  61  iNIo.  386. 
There  are  instances  under  which  it  would  be  dishonorable  for  the 
bailee  to  acquire  a  title  adverse  to  his  bailor;  but  exceptions  may  arise. 
Hadley  v.  Musselman,  104  Ind.  459  (purchase  under  a  public  tax  sale). 

2  Failing  to  return  the  thing  hired  amounts,  unless  satisfactory 
excuse  be  given,  to  conversion  on  the  bailee's  part,  so  as  to  justify  the 
recovery  of  damages  for  the  detention,  besides  the  compensation  due ;  or, 
perhaps,  a  continuance  of  recompense  at  tlie  same  rate.  See  Benje  v. 
Creagh,  21  Ala.  151;  99  Mass.  388;  Vaughan  v.  Webster,  5  Harring. 
(Del.)  2:,6. 

8  §  161 ;   Wright  v.  Melville,  3  C  &  P.  542. 

4  Austin  V.  Miller,  74  N.  C,  274  (sum  received  by  sale  of  the  injured 
thing  an  offset  to  claim  for  injury);  Bigbee  v.  Coombs,  64  i\Io.  529.  Ai;.d 
see  post.  Part  VI,  c.  8. 

V 

\^ 


^ 


0^        CHAPTER   IV.    ' 

PLEDGE   OR   PAWN. 

134,  fey  pledge  or  pawn  is  denoted  the  bailment  of  a  chattel, 
as  security  for  some  debt  or  engagement^  Transactions  like 
these  belong  to  the  mutual-benefit  class  under  consideration ; 
the  benefit  to  the  pledgor  or  pawnor  being  represented  by 
that  debt  or  engagement,  which  he  is  bound  to  make  good, 
and  the  benefit  to  the  pledgee  or  pawnee  consisting  in  the 
additional  means  thus  afforded  him  of  obtaining  the  desired 
satisfaction  or  fulfilment  thereof.  The  pledge  or  pawn  arises 
necessarily  upon  contract  and  the  bailment  itself  is  of  a  unique 
mercantile  description.^ 

135.  The  common  la^v  of  pledge  or  pawn  has  grown  apace 
with  the  development  of  personal  property  as  a  species  of 
wealth,  every  newly  created  class  of  such  property  giving 
the  subject  a  fresh  expansion.  Money,  for  obvious  reasons, 
must  always  have  been  an  inappropriate,  though  not  posi- 
tively unfit,  subject-matter  of  pawn,  being  the  end,  rather  than 
the  means,  of  security ;  and,  as  for  ships  and  vessels,  our 
maritime  law  deiived  names  and  its  liypothecary  system  from 
the  codes  and  usage  of  those  Mediterranean  powers  with 
whom  England  carried  on  her  infant  commerce.  If  a  noble- 
man had  been  forced,  in  the  extremity  of  war,  to  leave  his 
family  plate  and  jewels  with  the  lender  upon  usury,  in  order 
to  get  the  means  of  equipping  his  followers,  he  scored  his 
account,  when  he  could,  upon  his  creditor's  flesh.  Borrowers 
and  lenders  alternated  in .  hatred  and  fear  of  one  another,  as 
our  pawn  business  anciently  went  on;  and,  socially,  they 
were  strangers,  the  capitalist  being  the  inferior  in  caste. 
But  most  Anglo-Saxon  transactions  of  this  kind,  upon  per- 
sonal chattel  security,  three  centuries  ago,  were  pietty ;  and, 

1  §  162.    Bouv.  Diet.  "  Pledge,"  "  Pawu." 


70  THE   LAW   OF   BAILMENTS 

managed  as  they  were,  underhand  and  at  oppressive  rates,  we 
should  have  found  the  lenders  small  capitalists,  usually  of 
Jewish  extraction,  and  their  customers  needy  wretches,  at  the 
last  pinch,  who  shrank  from  disclosing  their  names.  For  in- 
dividuals of  wealth  who  aspired  to  rank  might  invest  on  bond 
and  mortgage  securit}',  or,  in  England,  take  attendant  terms, 
as  their  titled  debtors  enabled  them  to  do,  and  purchase 
lands ;  and  though  ready  to  buy  things  personal,  according 
to  their  needs,  such  capitalists  so  shunned  putting  out  their 
money  on  such  security  that,  as  a  rule,  borrowers  on  pledge 
had  to  visit  the  pawnbroker's  shop.^ 

135  a.  But  ere  this  day,  loans  on  the  security  of  chattels  per- 
sonal have  become  of  constant  and  open  occurrence  in  our 
community,  largely  engaging  the  attention  of  bankers  and 
investors.  And  the  social  rise  of  this  transaction  is  curiously 
indicated  by  the  changing  use  of  English  terms  to  denote 
it.  The  terms  "pawn"  and  "pledge  "in  our  language  ap- 
pear interchangeable,  and  law-writers  so  employ  them.  But 
"•  pawn,"  which  is  the  more  characteristic  of  the  particular 
transaction,  and  was  almost  always  applied  in  the  humbler 
days  of  this  bailment,  keeps  its  unpleasant  savor;  for  the 
modern  disposition  has  been  to  use,  in  its  stead,  "  pledge," 
a  term  admitting  of  various  senses,  some  of  them  truly  Nor- 
man, where  the  transaction  may  be  detached  from  the  three 
golden  balls.  And,  once  more,  commercial  paper  and  per- 
sonalty of  other  incorporeal  kinds  are  now  found  so  highly 
convenient  for  pledge,  that  brokers  and  bankers  have  put  us 
lately  to  using  still  another  term,  that  of  "  collateral  security," 
or  "  collaterals."  ^ 

1  §  163.     As  to  attendant  terms,  see  1  Schoul.  Pers.  Prop.  §  43. 

2  §  164.  See  2  Bl.  Cora.  157  ;  3  ib.  274,  280.  We  may  find  this  third 
expression  used  in  some  of  the  later  reports  in  an  uncertain  way,  as 
though  courts  were  bewildered  in  distinguishing  between  the  pledge  and 
chattel  mortgage,  or  wished  to  use  some  convenient  term  which  did 
not  commit  tliem  to  a  distinction.  See  Smithurst  v.  J^dmunds,  14  N.  J. 
Eq.  40 S  ;  First  Nat.  Bank  v.  Kelly,  57  N.  Y.  34;  Fraker  v.  Reeve,  36 
Wis.  85.  The  better  view  is  that  "  collateral  security  "  embraces  in  its 
broadest  S'^nse  both  pledge  and  chattel-mortgage  transactions,  while 
more  appropriately  applied  to  the  former  class,  and  in  the  stricter  phrase 


PLEDGE   OR  PAWN  71 

136.  We  shall  here  apply  the  generic  -word  "  pledgee  "  to  all 
of  these  bailees,  alike  in  their  general  pursuit,  and  to  private 
parties  who  ma}-,  in  special  cases,  take  chattel  security  for 
accommodation ;  the  corresponding  party  being  styled  tlie 
"  pledgor." 

137.  Our  English  pawn  or  pledge  corresponds  w^ith  the 
Roman  pignus,  a  word  wliose  origin  civilians  have  thought 
significant  of  the  manual  delivery  which  necessarily  accom- 
panied the  transaction ;  for  if  possession  remained  with  the 
debtor,  although  by  naked  agreement  the  property  was  placed 
in  security,  the  civil  law  styled  it  hypotheca.  Some,  however, 
have  said  that  the  difference  between  jjiynus  and  hypoth- 
eca was  one  of  sound  only.  Like  our  pledge,  the  Koman 
pignus  appears  to  have  been  confined  to  personal  property  or 
movables.  ^ 


to  pledges  of  incorporeal  personalty  alone.  See  "  collateral  security " 
used  ill  the  sense  of  a  mortgage  in  Matthews  r.  Warner,  14.5  U.  S.  475. 
As  a  chancery  phrase,  "  collateral  security  "  came  long  ago  in  other  con- 
nections to  denote  some  security  given  in  addition  to  tlie  principal  secu- 
rity. See  16  Ch.  D.  211,  217  (as,  e.  </.,  where  cue  borrows  money  on 
mortgage  and  also  deposits  bonds);  11  Penn.  St.  120.  Giving  one's  sim- 
ple promissory  note  for  a  loan,  and  bonds,  stock,  or  other  notes  with  in- 
dorsement, might  seem  a  proper  instance  under  the  same  head ;  and 
hence,  perhaps,  the  true  origin  of  the  mercantile  use  of  the  phrase,  which, 
however,  has  no  rigid  application  at  the  present  day. 

And  now  tliat  the  modern  pledge  is  so  connnonly  made  of  great  things 
as  well  as  small,  of  mercantile,  as  well  as  household  articles,  the  great 
capitalist  who  invests  money  in  staple  merchandise,  bonds,  stocks  or  com- 
mercial paper  refuses  blood  brotherhood  with  the  primitive  lender  upon 
garments,  animals,  furniture,  and  personal  ornaments ;  and  while  the 
pawnbroker  still  plies,  under  license,  the  individual  trade  with  misery 
and  humble  station,  a  proud  corporation  lends  and  invests  its  im- 
mense capital  upon  "collateral  security"  at  the  great  centres  of  finance 
and  trade. 

^§  166.  Our  commercial  law  speaks  of  "  hypothecating  "  ships  and 
vessels,  rather  than  "  pledging"  or  "  mortgaging"  them  ;  and  this  (natu- 
ralizing civil  rules  and  civil  terms  together)  because  a  bottomry  bond 
makes  the  ships  keel  or  bottom  a  creditor's  security,  without  requiring  a 
bailment  transfer  and  retransfer  of  visible  and  tangible  possession,  which 
would  be  troublesome,  even  if  practicable,  in  such  a  case.  See  The 
Grapeshot,  9  Wall.  (U.   S.)  129.. 


72  THE   LAW   OF  BAILMENTS 

138.  Pledge  is  to  be  distinguished  froiu  the  chattel  mortgage, 
which  it  much  resembles.  Every  chattel  mortgage,  like 
a  morto'ao'e  of  real  estate,  carries  over  to  the  party  whose 
security  is  intended,  a  transfer  of  legal  title  to  the  property, 
with  a  proviso  by  way~of  defeating  it ;  and  the  mortgagee 
become8V;_tecJinically  speaking,  the  owner  of  the  thing,  subject 
to  a  condition  of  title  divestment  upon  the  mortgagor's  faith- 
ful and_complete  perfonmmceof  the  main  undertaking  whose 
security  was  intended.  But,  under  a  pledge,  the  secuied 
'party  is  a  mere  bailee  of  the  thing,  while  the  main  undertak-" 
ing  ripens.  Nor  is  actual  possession  of  the  property  placecT 
in  security  s6~essentiar~to  a  mortgageerwho  stands  upon  a 
transferre(:l  title,  as  it  is  to  a  pledgee,  whose  strength  consists 
in  possessory  rights.^ 

1  §167;  5  Pick.  59;  39  Me.  45;  Thompson  v.  Dolliver,  132  Mass. 
103  ;  Lenz  v.  Harrison,  148  111.  598;  Coty  v.  Barnes,  20  Vt.  78 ;  8  Johns. 
96,  per  Kent,  C.  J.  This  theoretical  distinction,  however,  is  not  well 
kept  up  in  modern  practice  ;  for  equity  subjects  all  mortgages  to  fore- 
closure and  a  jwssible  right  of  redemption,  so  that,  pending  full  perform- 
ance by  one  party,  the  other  has  hardly  a  more  available  Jus  dixponendi 
than  any  pledgee.  Moreover,  our  local  legislation  tends  constantly  to 
assimilate  the  two  transactions,  especially  in  requiring  a  fair  and  bona 
fide  sale,  upon  default,  for  realizing  upon  the  security.  A  chattel  mort- 
gage depends  much  upon  the  suitable  form  of  writing,  which  imports  a 
sale  with  a  proviso  for  defeasance ;  while  the  mortgagee,  remaining 
usually  out  of  actual  possession  until  a  default,  secures  himself  against 
third  parties  by  having  his  written  instrument  recorded,  in  compliance 
with  local  statute.  In  a  pledge,  on  the  other  hand,  the  writings,  if  any, 
may  be  of  a  most  informal  character,  and  there  is  no  public  record  of 
them  ;  but  the  essence  of  the  security  is  in  the  delivery  of  the  thing,  and 
a  holding  by  the  pledgee  in  bailment ;  such  possession  constituting, 
when  perfected,  a  sufficient  notice  against  the  world  for  protecting  one's 
security.  See  Delivery, /)os< ;  2  Lowell  (U.  S.),  519;  Thompson  v.  Dolli- 
ver, 132  Mass.  103;  119  111  75;  Morgan  v.  Dod,  3  Col.  551;  101  Fed. 
(U.  S.)  41;  33  E.  L.  &  Eq.  43;  10  Met.  (Mass.)  7.  The  leading  jDrinci- 
[)ie  to  be  here  deduced  is,  that  an  actual  or  constructive  change  of  pos- 
session, where  chattels  are  given  in  security,  better  comports  with  the 
character  of  pledge  than  of  chattel  mortgage.  And,  apart  from  the 
(piestion  of  changing  possession,  if  the  transaction  for  security  imports 
the  mere  giving  in  security,  with  no  inmiediate  change  of  title,  it  will  be 
presumed  a  pledge  rather  tiian  a  mortgage  ;  while,  on  the  contrary,  if   it 


i 


PLEDGE   OR  PAWN  73 

139.  Pledge  is  also  to  be  distinguished  from  the  mere  lien 
already  considered.  In  short,  there  are  three  kinds  of  secur- 
ity  to  which  personal  property  may  be  subjectecl.  The  lowest 
is  tlift  ^^  lien  "  whose  essence  consists  in  the  right  ot  holding 
back  or  detaining  the  thmg  until  one's  demand  is  satisried.^ 
The  next  is  the  Ijlgdge,  now  to  be  considered,  whose  addi- 
tional advantage  is  tlie  common-law  right  to  sell  loi  dcfaidt  tnid* 
^.pply  tlT^  prr.pp<^ds_to  the  pledgee's  demand:  Tire  tllil'd,  antl 
tlieoretically  the  highest,  is  tne  mortgage,  wliei'U'  the  serU'iity 
holder  is  treated  as  conditionally  the  absolute  owner  ot  tile 
^^tVnng  bi  r-.n.sp  of  his  debtors  detauit."^     Of  the  three  transac- 

assuraes  to  transfer  the  legal  title  at  once  by  intendment  to  the  creditor 
or  obligee,  accompanied  perhaps  with  terms  of  defeasance,  and  yet  so  that 
the  title  shall  become  absolute  in  him  through  the  other's  mere  non-per- 
formance of  his  condition,  then  there  is  a  mortgage  instead  of  a  pledge. 
§  168.  The  intent  of  the  parties  should  govern  such  transactions,  if  clearly 
aiid  consistently  manifested.  See  general  works  on  Chattel  INlortgages  ;  1 
Schoul.  Pers.  Prop.,  etc.  As  more  particularly  between  the  parties  them- 
selves, a  difference  of  procedure  for  enforcing  the  security  on  default  of 
the  debtor  or  obligee  ;  and  meanwhile  a  difference  of  personal  responsi- 
bility as  concerns  the  thing  itself,  because  custody  is  transferred  in  the 
one  case  and  not  usually  in  the  other,  —  these  remain  the  fundamental 
points  of  separation  between  these  two  great  classes  of  chattel  security 
transaction;  classes  for  which  the  lloman  ptr/iius  and  hypotheca  appear 
better-fitting  epithets  on  the  whole  than  the  English  "  pledge "  and 
"chattel  mortgage." 

1  As  to  a  bailee's  lien,  see  ante,  OQ-lOi;  jwst,  Part  YI,  c.  7;  and  see 
generally  1  Sch.  Pers.  Prop. 

^  See  preceding  section.  It  is,  however,  to  be  observed  that  our  courts 
of  law  look  at  no  other  owner  than  the  mortgagee  under  a  chattel  mort- 
gage whose  condition  has  not  been  performed,  unless  the  local  statute  has 
otherwise  prescribed;  while  courts  of  equity  have  done  little  here  to  mould 
the  law  to  their  own  theory,  as  compared  with  their  constant  interposi- 
tion where  real-estate  mortgages  are  concerned.  And  hence  this  practical 
difference  has  widely  obtained  between  mortgages  of  real  estate  and  mort- 
gages of  personal  property,  though  more,  perhaps,  for  the  past  than  the 
future:  that  those  of  the  former  kind  follow  the  equity  rule  regardless 
of  form,  so  as  to  confer  no  legal  title  at  once  upon  the  mortgagor,  but 
to  serve  rather  as  mere  security  until  breach  of  condition;  whereas  those 
of  the  latter  kind  pass  the  legal  title  at  once  to  the  mortgagee,  subject  to 
defeasance,  agreeably  to  the  legal  rule.     See  Jones,  CJiattel  Mortgages, 

§1- 


.k^'^^ 


.'.'^ 


74  THE   LAW   OF  BAILMENTS 

tions  that  for  pledge  commends  itself  as  the  fniresf,  for  t.l^ft 
mutual  advantage  of   the  parties  concerned,    and   hence    its 
"great  popularity  among  business  men  at  the  present  day' 

140.  A  transfer  apparently  absolute  may  be  shown  to  be  in- 
tended for  security,  SO  far  as  personal  property  is  concerned, 
and  our  courts  leave  the  intention  of  the  parties  quite  freely 
open  to  interpretation,  in  this  respect,  notwithstanding  the 
writings  that  may  have  passed  and  their  literal  expression. ^ 
Whether  one  is  a  purchaser  or  pledgee  depends  upon  the  true 
intent  of  the  transaction.^ 

141.  The  classification  of  the  present  chapter  follows  that  of 
the  three  preceding  chapters,  to  which  the  present  bailment 
is  analogous.  We  shall  here  consider:  I.  The  pledge  con- 
tract. II.  Delivery  in  pledge.  III.  Bailment  in  pledge 
pending  maturity  of  the  secured  undertaking.  IV.  Bail- 
ment in  pledge  at  maturity  on  the  pledgor's  default,  or  upon 
fulfilment  of  the  secured  undertaking.^ 

142.  I.  The  Pledge  Contract.  To  the  pledge  contract  are 
these  three  essentials  :  (1)  A  Subject-matter ;  (2)  A  debt  or 
engagement;  (3)  Mutual  assent  that  this  subject-matter  shall 
be  handed  over  in  bailment  to  secure  payment  or  fulfilment  of 
this  debt  or  engagement.  Let  us  examine  these  essentials  in 
detail.* 

143.  (1)  As  to  the  subject-matter.  In  pledge,  as  in  all 
other  bailments,  our  transactif^i  is  necessarily  confined  to  per- 
sonal property.  And  of  personal  property,  except  for  the 
peculiar  rules  of  maritime  law  wliich  are  applicable  to  sliip- 

1  §  169.  Taking  negotiable  paper  for  an  existing  indebtedness  looks 
like  accepting  absolutely  that  mode  of  payment;  yet  the  parties  may 
show  that  the  paper  was  taken  simply  in  pledge.  10  Johns.  (N.  Y.)  471 ; 
CouLstocky.  Smith,  23  Me.  202;  Partee  v.  Bedford,  51  Miss.  Si;  Wood 
V.  Matthews,  73  Mo.  477.  And  often  has  a  bill  of  sale,  or  a  transfer  cer- 
tificate of  stock,  been  shown  to  be  intended  only  as  part  of  a  pledge 
tran.saction.  See  Rohrle  r,  Stidzer,  .50  Cal.  207;  38  Neb.  39;  Smith  v. 
Beattie,  31  N.  Y.  542;  Barber  v.  Hathaway,  1G9  N.  Y.  575. 

2  §169;  47  Minn.  417;'IIarris  v.  Lombard,  GO  Miss.  29;  AVilkie  v. 
Day,  141  Mass.  08  (word  "  guaranty  "  used  in  sense  of  security  or  lieu). 

«  §  170. 
'  §  171. 


PLEDGE   OR   PAWN  75 

ping,  all  kinds  which  are  visible  and  tangible  may  be  pledged ; 
and,  besides,  the  various  incorporeal  species,  so  far,  at  least, 
as  concerns  tliose  which  are  evinced  by  instruments  in  writing, 
whereby  a  transfer  of  possession  may  take  place.  In  the 
earlier  days  of  our  law,  only  corporeal  kinds,  and  tliose  a  few 
of  the  simple  sort,  were  put  in  pawn ;  and  in  the  leading  case 
of  Coggs  V.  Bernard,  Lord  Holt  is  found  laying  down  the  law 
with  particular  refei'ence  to  jewels,  wearing  apparel,  and  do- 
mestic animals.  No  such  brief  list  would  now  avail ;  for 
courts  of  this  day  constantly  recognize  the  interchange  in 
pledge,  not  only  of  merchandise,  stock  in  trade,  and  liouse- 
liold  goods  of  every  modern  description,  but  also  of  incor- 
poreal chattels ;  and  an  enumeration  here  may  be  suggestive/-  y», 
in  defining  the  scope  of  bailment  transactions  generally.^    x-  pi  ^ 

1  §  172;  2  Kent,  Com.  577;  Story,  Bailra.  §  290 ;  2  Ld.  Raym.  909, 
917.  A  pledge  may  be  made  of  rails  laid  for  a  temporary  jiurpose  upon 
another's  land,  as  well  as  of  the  railway  rolling  stock,  since  tliey  are  all 
personal  property.     Woodward  c.  Exposition  R.,  o9  La.  An.  56G. 

Among  our  incorporeal  chattels  whose  bailment  in  pledge  is  frequently 
recognized  may  be  mentioned  the  following  :  Bills  and  Notes,  12  Johns. 
(N.  Y.)  146;  3  Penn.  St.  381;  21  La.  An.  555:  U  Minn.  27.  Other 
negotiable  and  ^wast-negotiable  instruments,  like  coupon  bonds  and  gov- 
ernment securities.  L.  R.  1  Q.  B.  585;  1  App.  Cas.  470;  72  111.  623  ;  45 
N.  Y.  718.  IMunicipal  claim  vouchers.  93  U.  S.  321.  Shares  of  stock 
and  scrip  certificates,  34  Md.  182;  42  N.  H.  424;  57  Penn.  St.  474;  54 
Tex.  330;  L.  R.  3  Ex.  299.  Title  deeds,  62  Ga.  413;  L.  R.  8  i:q.  331; 
though  not  in  the  sense  of  creating  a  legal  lien  on  -land,  for  equity  must 
intervene  to  enforce.  Atlantic  Trust  Co.  v.  Nelms,  115  Ga.  53.  A  stock 
margin,  41  N.  Y.  235.  A  savings-bank  deposit,  67  Me.  587  (possession  of 
the  book).  A  judgment,  or  bond  with  warrant  to  confess  judgment,  78 
Penn.  St.  334 ;  161  Penn.  St.  469.  Bonds  secured  by  a  mortgage  on  per- 
sonal property  and  corporate  franchises,  50  N.  H.  57;  10  R.  I.  1.  Chat- 
tel mortgages  of  every  description,  36  Wis.  35;  94  U.  8.  734.  Even  a 
lease  may  be  thus  taken,  for  leases  are  bnt  chattels  real,  8  Cal.  145;  L.  R. 
10  Eq.  92.  And  see  76  Mo.  605  (tenant  pledging  his  furniture  for  the 
rent  due).  Or  a  mortgage  of  real  estate,  which  before  foreclosure  is  per- 
sonal property,  9  Bosw.  (N.  Y.)  322;  53  Vt.  1;  66  Cal.  480;  94  U.  S. 
734.  Or  unlocated  land  certificates,  54  Tex.  330._  A  life  insurance  policy 
may  be  taken  in  pledge;  31  Ark.  476;  69  Iowa,  189;  45  Barb.  (N.  Y.) 
Ill ;  72  N.  H.  112  ;  L.  R.  5  Ch.  32.  And  so  may  a  fire  or  marine  insur- 
ance policy,  9  Allen  (Mass.),  29;  L.  R.  17  Eq.  205. 

That  which  is  incapable  of  delivery  cannot,  logically  speaking,  be  the 


76  THE   LAW   OF   BAILMENTS 

143  a.  That  which  does  not  actually  exist  cannot  in  strictlieSS 
be  the  subject-matter  of  a  pledge  :  as  where  a  thing  lias  ceased 
to  exist,  or  has  not  yet  come  into  being.  Thus,  the  pledge 
contract  of  goods  which  prove  already  burned  up  is  void  ;  and 
so  is  it  with  tlie  pledge  to-day  of  an  animal  that  died  yesterday. 
For,  though  parties  might  agree  to  place  a  heap  of  ashes,  a 
carcass,  or  a  skeleton,  in  security,  the  identity  of  that  to 
which  assent  is  given  must  be  preserved  throughout,  and  a 
new  product  does  not  answer  for  the  perished  tiling  whose 
pledge  was  mutually  intended.^  The  case  of  a  thing  not  yet 
come  into  being  presents  some  difficulty,  for  equity  has  much 
diluted  the  strength  of  the  common-law  rule  in  this  respect. 
Granting  the  rule,  it  yet  appeal's  that  the  chattel  product  in 
futuro  of  that  to  which  one  holds  a  right  in  esse,  like  the 
prospective  earnings  of  a  voyage  or  of  some  existing  contract 
of  service,  the  year's  wool  on  one's  sheep,  the  milk  from  one's 
cows,  the  severed  crops  from  one's  land,  a  reversionary  riglit 
as  heir,  are  all  deemed  assignable  interests  at  this  day,  and 
capable  of  sale  ;  and,  if  capable  of  sale,  they  must  be  capable 
of  pledge  or  mortgage.  And  it  is  still  more  broadly  asserted 
that  chattels  in  which  one  has  a  potential  interest  may  now 

subject-matter  of  pledge  or  other  bailment;  but  since  money  rights,  not 
negotiable,  or  mere  choses  in  action  may  at  least  be  assigned,  so  that 
delivery  of  the  muniment  or  voucher  shall  answer  the  purpose  of  a  bail- 
ment, this  reservation  is  unimportant  in  modern  practice.  See  1  Wheat. 
230;  Gay  v.  Moss,  31  Cal.  125;  Dunn  r.  Meserve,  58  N.  H.  429;  Talty 
V.  Freedman's  Savings  Co.,  93  U.  S.  321.  One's  interest  in  a  limited  part- 
nership may  be  pledged.  107  Penn.  St.  590.  Or,  by  a  suitable  writing  of 
assignment,  any  open  account  or  book  debt.  105  Cal.  407.  Or  some 
claim  or  demand.  161  Mass.  550.  Or  even  by  equitable  assignment  the 
fractional  part  of  a  claim.     Fairbanks  v.  Sargent,  117  N.  Y.  320. 

The  pledge  with  due  indorsement  of  a  bill  of  lading  of  goods  in  transit 
by  land  or  water,  transfers,  under  mercantile  usage  of  the  present  day, 
the  special  property  therein  against  third  parties  as  well  as  against  the 
pledgor  himself.  87  111.  290;  124  Mass.  311:  71  N.  Y.  3.53.  And  a 
warehouse  receipt  may  likewise  be  given  in  pledge  so  as  to  carry  the 
goods  it  represents.  107  N.  Y.  121;  40  Ohio  St.  170.  And  see  §  173; 
167  N.  Y.  329  (equitable  pledge  of  receipts). 

1  §  174.  The  same  rule  applies  to  sales.  2  Schoul.  Pers.  Prop.  §  207- 
209.     Benj.  Sales,  bk.  1,  pt.  1,  c.  4. 


PLEDGE   OR   PAWN  77 

be  transferred,  though  not,  of  course,  any  mere  possibility 
coupled  with  neither  potential  nor  actual  interest.^  We  may 
here  distinguish  between  future  obligations,  such  as  a  pledge 
contract  might  seek  to  impose  upon  the  parties  concerned, 
and  obligations  which,  to  prevail  as  a  pledge  or  baibner.t, 
ought  to  be  in  present  force ;  between  rights  which  one  may 
require  the  other  party  to  recognize  when  opportunity  offers, 
and  yet  may  not  fully  enforce  to  the  lawful  hindrance  of 
immediate  third  parties  in  interest.^ 

144.  Natural  increase  of  a  pledge  goes  as  accessory  in  fiiiuro 
to  the  pledge  itself,  the  pledgee  duly  acquiring  and  holding 
the  increments  as  they  vest.  For  as  soon  as  the  thing  comes 
into  existence,  the  bailee's  possession  takes  effect:  though 
here  once  more  he  should,  as  regards  the  public,  make  and 
keep  his  possession  perfect.^ 

145.  But  there  are  some  things  -whose  pledge  is  usually  forbid- 
den; as,  for  instance,  the  pensions,  bounties,  and  pay  of 
soldiers  and  sailors,  a  class  of  persons  whom  the  law  seeks  to 

1  The  pledge  contract  of  a  particular  life-interest  in  a  sale  is  also, 
under  our  general  rule,  null,  if  that  life  has  already  expired.  Strickland 
V.  Turner,  7  Ex.  208. 

■^  §  175.  A  chattel  mortgage  cannot  operate  upon  an  ungrown  and  un- 
severed  crop,  for  this  is  real  estate.  7  Wis.  159.  And  the  rule  is  strictly 
asserted  against  the  pledge  of  an  overgrown  and  unsevered  crop.  Git- 
tings  r.  Nelson,  86  111.  591.  But  semhle,  the  pledge  would  hold  good  if 
under  his  contract  the  creditor  severed  and  held  possession  as  of  person- 
alty, before  other  rights  intervened.  Jb.  See  also  5i  Kan.  674.  But 
to  take  personal  chattels  simply,  contracts  for  pledging  future  accessions 
of  bricks  or  of  furniture  have  been  given  full  effect,  so  that  the  pledgee's 
right  shall  vest  at  once  upon  getting  possession  before  others  hav.e  at- 
tached. Macomber  v.  Parker,  14  Pick.  (Mass.)  497  ;  Smithurst  v.  Ed- 
munds, 14  N.  J.  Eq.  408 ;  Ayers  v.  Banking  Co.,  L.  R.  3  P.  C.  548. 
Equity  inclines  to  protect  the  secured  creditor  under  such  circumstances. 
And  we  may,  perhaps,  correctly  assume  that  the  pledge  contract  of  after- 
acquired  chattels,  or  chattels  by  accession,  so  far  as  courts  sustain  the 
arrangement,  gives  the  pledgee  a  right  strong  as  against  his  pledgor,  but 
■which,  as  against  third  parties,  he  must  perfect,  when  opportunity  offers, 
by  taking  possession  before  other  creditors  attach  it.  See  Delivery, 
post. 

^  §  176;  and  cf.  preceding  note.  See  also  1  Hughes  (U.  S.),  17; 
Smith  V.   Atkins,  18  Vt.  461. 


78  THE   LAW   OF   BAILMENTS 

protect,  as  commonly  improvident  and  out  of  easy  range  of 
the  courts.^  And  3'et,  as  to  necessaries,  or  articles  exempt 
from  attachment  or  execution,  these  can  be  pledged  or 
pawned  at  the  common  law ;  and  it  is  no  uncommon  thing 
for  a  person  in  distress  to  take  garments  to  the  pawnbroker 
which  ought  to  be  on  his  own  back.^ 

146.  (2)  As  to  the  debt  or  engagement.  This  may  be  pri- 
mary or  secondary,  on  the  pledgor's  part,  absolute  or  condi- 
tional, for  the  payment  of  money  or  for  any  other  lawful 
performance  of  an  engagement.  The  pledgor  may  be  bound 
to  the  debt  or  engagement  as  indorser  or  surety  for  another, 
or  as  himself  the  maker  or  principal.^  So,  too,  may  the  secu- 
rity be  taken  by  the  pledgee  for  the  repayment  of  money 
loaned  (which  is  the  usual  case)  or  so  as  to  indemnify  him 
for  becoming  an  indorser  or  surety  at  the  pledgor's  instance.^ 

1  §  177 ;  3  T.  R.  681. 

2  Frost  V.  Shaw,  3  Ohio  St.  270;  Scott  v.  Reid,  83  INIinn.  203.  The 
riile  of  necessaries,  or  of  exempt  articles,  applies  only  as  to  a  selection  of 
things  in  such  a  sense;  and  an  owner  may  waive  such  selection.  Public 
policy  also  may  be  found  to  check  or  prohibit  pledge  transactions  — 
e.g.,  in  respect  of  banks  —  except  upon  certain  terms;  and  so  as  to  the 
pawnbroking  business.     See  11  Wall.  (U.  S.)  369. 

While  contract  rights  may  now  be  generally  pledged,  one  cannot 
pledge  a  cause  of  action  growing  out  of  a  personal  wrong.  Pindell  v. 
Grooins,  18  B.  Mon.  (Ky.)  501. 

8  §  178;  Brick  v.  Freehold  Co.,  37  N.  J.  L.  307;  Stewart  i-.  Davis,  18 
Ind.  74;  Wilcox  v.  Fairhaven  Bank,  7  Allen  (Mass.),  270. 

*  See  Blackwood  v.  Brown,  31  i\Iich.  4  (a  surety  to  be  indemnified); 
Gilson  V.  Martin,  49  Vt.  474;  Third  Nat.  Bank  v.  Boyd,  44  Md.  47  (an 
indorser  for  the  pledgor)  ;  9  ^lart.  (La.)  519. 

As  to  pledge  for  a  pre-existing  debt,  there  is  still  conflict ;  some  au- 
thorities holding  that  there  is  here  no  valuable  consideration.  Ill  Penn. 
St.  291;  60  Conn.  463;  152  Mass.  189,  199;  while  others  rule  that  there 
is.     108  Ind.  183;  102  U.  S.  14;  40  Kan.  536. 

The  pledge  contract  holds  good  for  just  what  it  is  mutually  agreed  to 
secure  and  no  moie.  One  may  give  security  for  the  payment  of  £10,000 
out  of  his  debt  of  §17,000;  and  after  he  has  paid  810,000  he  is  entitled 
to  a  return  of  the  security.  Fridley  v.  Bowen,  103  111.  633.  Where  one 
gives  to  a  banker  a  pledge  to  cover  certain  drafts  or  overdrafts,  dis- 
counts, etc.,  the  banker  cannot  hold  the  pledge  for  other  indebtedness  to 
him.  84  Ky.  135;  Duncan  v.  Brennan,  83  N.  Y.  487  ;  159  Mass.  51;  Bie- 
binger  v.  Continental  Bank,  99  U.  S.  143 ;  86  Va.  690 ;  Bowes,  Re,  33 


PLEDGE   OTl  PAWN  79 

In  eveiy  case  some  lawful  debt  or  engagement  which  is  or 
may  be  owing  the  pledgee  constitutes  the  foundation  of  the 
security  upon  which  the  thing  is  given.  Whatever  the  secu- 
rity, the  pledgee  has  no  right  to  apply  it  as  another  or  greater 
security  than  what  was  mutually  intended,  AA'ithout  the 
pledgor's  free  assent.^ 

147.  (3)  As  to  mutual  assent  that  the  particular  subject-matter 
be  handed  over  to  secure  payment  or  fulfilment  of  the  partic- 
ular debt  or  engagement.  ^Mutual  assent,  whether  formally 
expressed  in  written  or  spoken  words,  or  inferable  from  the 
acts  and  conduct  of  the  parties,  jDresupposes  a  contract  which 
parties  enter  into  conformably  to  the  law  of  contracts.  This 
contract  should  be  between  parties  legally  competent  thereto ; 
neither  disqualified,  as  are  insane  persons,  and,  to  a  certain 
extent,  infants  and  married  women;  nor,  like  certain  kinds  of 
corporations,  placed  under  special  statute  disabilities  in  this 
respect.^     It  must  not  be  made  under  circumstances  involving 

Ch.  D.  586.     If  the  pledge  waa  given  for  A's  note,  it  does  not  prpsmnably. 

secure  the  renewal  of  A's  iiote, 96  N.  Y.  12.3.     On  the  other  hand,  where 

the  pledge  is  to  secure  a  general  balance  the  pledgor  cannot  reclaim 
the  pledge  on  paying  only  a  specitic  part;  and  pledgor  and  pledgee  may 
agree  that  a  security  shall  stand  for  renewals  as  well  as  for  the  original 
notes  seci^red.  iNlerchants  Bank  r.  Deraere,  92  Ga.  735;  Shrewsbury 
iTistitution's  Appeal,  94  Penn.  St.  309. 

^  In  short,  mutual  intendment  regulates ;  and  the  object  may  be  to  secure 
all  or  part  of  what  one  owes,  a  general  or  a  specific  indebtedness;  to  pro- 
tect what  is  now  outstanding  from  the  pledgor,  or  so  as  to  include  future 
liabilities  as  they  may  arise  in  favor  of  the  same  pledgee ;  to  cover  obliga- 
tions for  a  fixed  or  for  an  indefinite  period  —  provided  always,  that  the 
transaction  be  not,  as  against  third  parties,  a  device  for  defrauding 
them.  Or  §§  178,  187;  Third  Nat.  Bank  v.  Boyd,  U  Mo.  47;  Moors  v. 
Washburn,  147  Mass.  344 ;  Stearns  v.  Marsh,  4  Denio  (N.  Y.),  227  ; 
Cross  V.  Brown,  17  R.  I.  .568 ;  Berry  v.  Gibbons,  L.  R.  8  Ch.  747.  As  to 
the  question  of  fact,  see  75  ]\Id.  546.  "  Other  subsequent  indebtedness  " 
applies  presumably  to  that  of  pledgor  to  pledgee  and  not  to  claims  of 
pledgor  outside,  which  the  pledgee  buys  up.     160  N.  Y.  549. 

2  §§  179,  186.  1  Holmes  (U.  S.  Cir.),  180;  Faulkner  y.  Hill,  104  Mass. 
188.  As  to  married  women,  see  Schoul.  Dom.  Rel.  §  142.  As  to  partner- 
ships, see  Liberty  Bank  v.  Campbell,  75  Va.  534;  107  Penn.  St.  590;  87 
Ala.  614  (part  owner);  Rogers  r.  Batchelor,  12  Pet.  (U.  S.)  221.  See 
further,  as  to  corporations,  15  N.  Y.  9;  Bank  v.  Lanier,  11  Wall.  (U.  S.) 
369;  L.  R.  10  Eq.  381  ;  L.  R.  3  P.  C.  548. 


80  THE   LAW   OF   BAILMENTS 

force  or  fraud  or  essential  error;  for  this  would  render  it 
voidable  by  the  injured  party. ^  Nor,  with  reference  to  the 
pledgor's  other  creditors  and  third  parties  generally,  ouglit 
such  agreements  to  be  fraudulent;  else  the  party  wronged 
might  have  the  transaction  set  aside.  Whether  mutual 
assent  has  closed,  or  there  is,  instead  of  a  pledge  contract,  a 
mere  unaccepted  offer  to  pledge,  the  law  of  contracts  will 
determine.^ 

148.  Illegality  of  the  pledge  contract  is  another  cause  of 
avoidance  ;  rendering  it,  indeed,  utterly  null  in  purview  of 
the  law.  But  since,  apart  from  regarding  each  culprit's  own 
criminal  accountability,  the  fact  that  illegality  practically 
puts  ont  of  court  the  party  who  seeks  to  enforce  the  contract 
tainted  with  it,  one's  disadvantage  might,  to  his  opponent, 
prove  a  positive  advantage.^ 

149.  Pledge  by  one  who  is  not  the  owner  is  recognized  here 
as  in  other  bailments,  in  respect  of  requiring  the  pledgee  to 
honor  his  pledgor's  title  and  to  volunteer  no  objection  to  it. 
But  in  the  present  transaction,  unlike  most  bailments,  the 
question  of  a  bailee's  rights  may  involve  a  very  large  consid- 
eration with  which  he  has  parted  on  security  of  the  thing, 
and  this  upon  a  transaction  which,  with  its  various  renewals, 
may  last  for  a  considerable  period.  A  pledgee  may  have  ad- 
vanced, on  security  of  the  thing,  all  or  nearly  all  its  real  mer- 

1  §  179. 

2  See  Providence  Thread  Co.  v.  Aldrich,  12  R.  T.  77;  126  Ala.  194; 
Harrison  v.  Clark,  7-1  Conn.  18. 

As  already  intimated,  no  express  contract  is  essential  to  a  pledge, 
since  the  transfer  or  possession  with  suitable  mutual  interest  is  largely 
relied  upon.  Modern  transactions  show  often  a  vast  or  very  complex 
pledge  transaction  where  the  contract  was  oral,  or  possibly  expressed 
tersely  in  the  pledgor's  note  which  went  with  the  security ;  but  delivery 
made  the  bailment  complete  and  aided  oral  proof  of  the  mutual  inten- 
tion.    See,  e.  g.,  Means  v.  Bank  of  Randall,  146  U.  S.  620. 

^  §  180.  The  civil  maxim  is  in  pari  delicto  potior  est  conditio  possidentis. 
Hence,  if  the  delivery  in  bailment  has  already  taken  place,  the  pledgee 
has  the  advantage  of  his  possession  when  the  pledgor  would  recover;  but, 
if  the  transaction  rests  merely  in  an  unexecuted  contract,  the  advantage 
lies  with  the  pledgor.  See  King  i\  Green,  6  Allen  (Mass.),  139;  Curtis 
V.  Leavitt,  IG  N.  Y.  9  ;  Taylor  v.  Chester,  L.  11.  4  Q.  B.  309. 


PLEDGE   OR   PAWN  81 

cantile  worth.  Hence  it  behooves  him  to  take  heed  that  the 
pledgor,  if  not  owner,  had  at  least  some  sort  of  right  or 
authority  to  deliver  it  in  security ;  and  our  modern  courts, 
moreover,  aided  by  legislation  and  the  infusion  of  equity 
jirinciples,  seek,  as  far  as  possible,  to  give  a  just  and  reason- 
able scope  to  the  law  of  pledge,  so  as  to  aid  so  convenient  a 
mercantile  transaction.  How  far,  then,  effect  may  be  given 
rightfully  to  a  pledge  transaction,  on  a  hoiui  fide  pledgee's 
behalf,  where  the  pledge  was  given  by  one  not  the  owner, 
becomes  a  matter  of  preliminary  inquiry.^ 

150.  Personal  property  cannot  be  pledged  as  against  the  true 
owner  ^^ithout  liis  consent  or  authority  ;  and  this  old  rule  of 
the  common  law,  applicable  more  particularly  to  corporeal, 
or  visible  and  tangible,  chattels,  concedes  that  the  rightful 
owner  may  overtake  and  recover  his  own  chattels,  wrongfully 
pledged  by  another,  were  the  pledgee  never  so  honest  on  his 
part,  and  may  disregard  the  amount  such  pledgee  may  have  ad- 
vanced upon  them  as  security  to  the  thief  or  wrongdoer.  Such 
is  the  fundamental  rule,  and  it  should  be  borne  in  mind.^ 

151.  Eut  wliere  the  pledgor  assigned,  in  effect,  some  valuable 
interest  of  his  own  in  the  thing,  liaving  its  rightful  possession 
and  not  being  a  mere  thief,  our  law  in  modern  times  is  dis- 
posed to  protect  the  lona  fide  pledgee  to  that  extent  as  to  his 
own  advances  upon  the  security.  As,  where  the  pledgor  was 
a  hired  bailee  with  a  just  lien  for  services  rendered  upon  the 
thing,  or  a  bailee  for  hire  with  a  valuable  term  of  enjoyment 
not  yet  expired  ;  or  in  the  case  of  a  factor  or  broker,  who  had 
made  advances  on  the  chattels  in  his  charge,  having  been  em- 
ployed to  sell  but  not  to  pledge.^     For  here  the  true  owner  is 

1  §  181. 

-  §  181.  Gottlieb  v.  Ilartman,  3  Col.  53  ;  Branson  v.  Heckler,  22  Kan. 
610;  Small  v.  Robinson,  69  Me.  425:  Singer  Man.  Co.  v.  Clark,  5  Ex.  D. 
37.  A  similar  rule  applies  to  the  wrongful  sale  of  a  chattel  personal ; 
the  old  rule  of  markets  overt  having  no  recognized  application,  in  this 
country  at  least.  As  to  delay,  laches,  etc.,  in  pursuing  on  an  owners 
part,  a  tortious  possession  for  years  does  not  confer  title  on  the  pledgee. 
107  N.  C.  189. 

^  §§  184,  185.  One  who  has  a  limited  title  to  a  chattel,  or  a  special 
interest   therein,    such  as  a  life  owner  or  a  lien-creditor,  is  allowed  to 

6 


82  THE   LAW   OF   BAILMENTS 

no  worse  off  than  he  would  have  been  had  his  bailee  or 
agent  acted  honestly ;  and  it  is  just  that  to  the  extent  of  such 
valuable  interest  in  the  tortious  pledgor  the  hona  fide  pledgee 
should  1)6  protected. 

152.  Where,  again,  the  pledgor  v/as  the  o'wner's  agent  in 
possession,  under  a  scope  of  authority,  as  held  out  to  third 
persons,  sufficient  to  justify  one  in  advancing  upon  the  pledge 
of  the  thing,  the  hona  fide  pledgor  should  be  protected  corre- 
spondingly in  his  security,  whether  the  agent's  actual  authorit}^, 
as  between  himself  and  his  own  principal,  was  sufficient 
or  not.i 

153.  Again,  under  the  peculiar  rules  of  negotiable  instruments 
not  overdue,  any  hona  fide  third  person,  without  previous  notice 
of  an  infirmity  of  title  or  intended  misappropriation  such  as 
should  put  prudent  men  on  their  guard,  is  protected  to  the 
extent  of  his  advances  by  way  of  pledge  to  the  holder  of  such 
property.  This  is  a  broad  and  general  rule,  which  covers  the 
sale  or  pledge  of  negotiable  instruments,  even  by  one  who  has 
stolen  them.2     And  where  a  fiduciary  party  misappropriates 

pledge  to  the  extent  of  his  title,  though  not  beyond  it.  Hoare  v.  Parker, 
2  T.  R.  376  ;  4  Camp.  121.  As  to  factor  or  broker,  see  First  Nat.  Bank 
V.  Boyce,  78  Ky.  42,  where  the  subject  of  his  tortious  pledge  is  fully  dis- 
cussed.    See  also  post,  as  to  sub-pledge  by  a  pledgee. 

Where  a  factor  advances  money  and  takes  a  bill  of  lading  in  his  own 
name  he  becomes  owner  rather  than  pledgee.  Moors  v.  Kidder,  100 
N.  Y.  32.  But  the  strict  common  law  discountenanced  the  pledge  by  a 
factor  or  broker,  though  he  might  sell.  §  184.  But  modern  legislation 
and  the  modern  decisions  abate  this  rigor.  Ih. ;  L.  R.  4  C.  P.  93 ;  67 
Fed.  (U.  S.)  469;  165  Mass.  552;  24  N.  Y.  52L  Cf.  99  Fed.  (U.  S.) 
525. 

1  §§  181,  184;  13  Mass.  105:  Goldstein  v.  Hort,  30  Cal.  372.  Clearly 
an  authorized  agent  may  pledge  or  contract  to  pledge  on  behalf  of  his 
principal;  an  officer,  in  the  name  of  the  corporation  he  represents;  and  a 
holder  generally,  under  the  owner's  consent.  Agency,  express  or  implied, 
confers  authority  ;  in  any  case  it  is  sufficient  that  the  owner  consented 
to  have  the  thing  pledged  ;  and  a  transaction  may,  as  against  the  true 
owner,  amount  constructively  to  a  pledge.  All  this  accords  with  the 
general  law  of  bailments  elsewhere  considered.    §  181.    And  see  ante,  11,  18. 

2  §§  181,  184  a;  Bealle  v.  Southern  Bank,  57  Ga.  274;  39  La.  An.  90; 
Fisher  v.  Fisher,  98  Mass.  303;  4  Mo.  App.  59;  43  Neb.  680;  Farwell  v. 
Importers'  Bank,  90  N.  Y.  483  ;  131  N.  Y.  595;  1  App.  Cas.  476;  Sheffield 


PLEDGE  OE  PAWN  83 

thus  on  the  pledge  of  such  chattels  incorporeal  in  his  pos- 
session, we  should  distinguish  between  notice  that  he  pledges 
avowedly  for  his  own  debt  and  notice  that  he  pledges  as 
though  on  behalf  of  his  fiduciary .^ 

154.  And,  once  more,  from  the  blended  consideration  of 
these  last  two  elements,  —  ostensible  agency  given  to  pledge 
and  a  quasi-negotinhle  character  of  the  instrument,  —  we  find 
a  number  of  recent  cases,  where  a  fiduciary  had  abused  his 
trust  in  pledging  to  a  third  party,  but  nevertheless  the  bona 
fide  pledgee  who  was  misled  into  advancing  money  was  pro- 
tected, against  the  true  owner,  as  having  the  superior  equity 
for  his  claim ;  for,  where  of  two  persons  equally  innocent  one  , 
must  suffer,  it  should  be  he  who  enabled  the  mischief  to  be 
done.^     And  hence,  from  either  one  of  the  four  causes  thus 

V.  London  Bank,  13  App.  Cas.  333.  But  observe  the  limitation  of  such  a 
rule,  as  stated  in  the  text;  the  pledgee  must  be  a  honajide  party  for  value 
who  advaiici'd  without  previous  notice  of  infirmity.  See  People's  Bank 
r.  Clayton,  06  Vt.  541  (notice  that  the  note  given  in  pledge  was  of  an 
accomuiodation  character)  ;  S  Taunt.  100  (ear  marks  of  true  title  on  the 
instrument) ;  Sheffield  v.  London  Bank,  13  App.  Cas.  333  (where  negoti- 
able instruments  are  brought  in  block  for  pledge  by  one  known  to  be  a 
broker,  one  should  be  suspicious  and  make  inquiry);  Bentwick  ik  Joint 
Stock  Bank  (1893),  2  Ch.  120.  Cf.  Smith  v.  Savin,  141  N.  Y.  315.  One 
is  not  a  bonajiile  holder  entitled  to  protection  who  has  seasonable  notice 
of  infirmity  and  disregards  it.  Nor  can  overdue  paper  or  negotiable 
securities  with  suspicious  erasures  be  safel}^  taken  in  pledge;  nor,  appar- 
ently, negotiable  instruments,  which,  though  genuine,  have  never  been  put 
into  circulation;  nor  puljlic  securities  which  have  been  paid,  and  instead 
of  being  cancelled,  are  improperly  reissued.  §  181.  There  is  furthermore 
a  distinction  to  be  observed  between  the  bona  fide  holder  for  value  without 
notice  of  infirmity,  before  and  after  maturity  of  the  negotiable  instru- 
ment which  is  transferred  without  right  or  title;  for,  after  maturity, 
title  depends  upon  true  ownership,  as  in  non-negotiable  chattels.  See 
Gl  Tex.  365;  7  Wall.  (U.  S.)  435.  And  see  Colson  v.  Arnot,  57  N.  Y. 
253;  79  Ga.  547;  Hambleton  r.  Central  Ohio  R.,  44  Md.  551  ;  3  Edw^  Ch. 
(N.  Y.)  182;  Board  of  Education  v.  Sinton,  41  Ohio  St.  504. 

1  §  184  a. 

2  §§  182,  184  a.  AVith  respect  to  stock,  which  is  the  creature  of  local 
statute,  the  rule  of  negotiability  is  in  some  States  strongly  upheld;  but 
not  so.  in  others.  Cf.  Sewall  v.  Water  Power  Co.,  4  Allen  (Mass.),  272, 
282;  Burton's  Appeal,  93  Penn.  St.  214.  As  to  whether  a  stock  certificate 
expressed  in  the  name  of  "  A.B.  Trustee,"  etc.,  should  put  one  on  inquiry, 


84  THE   LAW   OF   BAILMENTS 

enumerated  the  true  owner  may  be  retarded  from  recovering 
his  own  personal  property  without  first  making  good,  to  tlie 
extent  indicated,  tlie  amount  actually  and  lona  Jide  loaned  by 
the  pledgee,  and  relying  for  his  own  indemnity,  if  any,  upon 
the  person  who  took  advantage  of  his  possession.^ 

155.  The  pledge  given  stands  as  security  for  the  whole  and 
for  every  part  of  the  debt  or  engagement,  unless  it  has  been 

cf.  Shaw  V.  Spencer,  100  Mass.  382;  4  L.  T.  N.  s.  845;  Thompson  v. 
Toland,  48  Cal.  99.  Where  the  treasurer  of  a  company  pledges  stock 
newly  issued  in  his  own  name  for  his  private  debt,  the  pledgee  is  put 
upon  inquiry.  150  Mass.  406;  Moore  v.  Citizens  Bank,  111  U.  S.  156. 
And  see  Ryman  v.  Gerlach,  153  Penn.  St.  197. 

But  whether  stock  is  to  be  deemed  strictly  negotiable  or  not,  the 
modern  inclination  is  to  uphold  the  equity  of  a  bona  fide  pledgee  without 
notice  of  infirmity,  where  the  certificate,  with  the  true  owner's  assignment 
in  blank  on  the  back  (with  suitable  power  of  attorney),  was  intrusted  by 
him  to  the  party  who  abused  his  opportunities  by  pledging  it.  See 
Cherry  v.  Frost,  7  Lea  (Tenn.),  1;  66  Cal.  74,  402;  Merchants  Bank  v. 
Livingston,  74  N.  Y.  223;  Burton's  Appeal,  93  Penn.  St.  214;  Fifth  Ave. 
Bank  v.  Ferry  Co.,  137  N.  Y.  231.  But  cf.  Taliaferro  v.  Baltimore  Bank, 
72  Ind.  164;  4  Woods  C.  C.  (U.  S.)464.  And  for  the  general  application 
of  the  equity  principle  stated  in  the  text,  see  2  Black  (U.  S.),  372;  Bab- 
cock  V.  Lawson,  4  Q.  B.  D.  394;  Hakes  v.  Myrick,  69  Iowa,  189  ;  36  La. 
An.  585;   Stone  v.  Brown,  54  Tex.  330. 

Executors,  guardians,  and  other  fiduciary  officers  are  permitted  so 
wide  a  range  of  authority  in  the  ordinary  exercise  of  their  trust,  that  one 
need  not  question  their  general  power  to  pledge  personal  assets  of  the 
trust  fund.  §  183;  7  Johns.  Ch.  (N.  Y.)  150;  11  S.  &  R.  (Penn.)  377; 
3  Allen  (Mass.),  217;  13  Rich.  Eq.  (S.  C.)  269;  Gottlieb  v.  Bank,  131 
N.  Y.  595  (bonds  standing  in  his  name  as  "  executor  ").  But  it  is  other- 
wise where  the  party  dealing  witn  such  officer  is  chargeable  with  notice 
of  his  breach  of  trust;  as  if,  manifestly,  the  pledge  of  fiduciary  assets  is 
for  his  private  advantage.  Thompson  v.  Toland,  48  Cal.  99 ;  Shaw  v. 
Spencer,  100  Mass.  382.  Akin  to  this  doctrine  is  that  applicable  to 
agents  having  large  general  powers  for  managing  the  principal's  personal 
estate.  27  La.  An.  149.  As  to  pledge  by  husband,  of  his  wife's  property, 
in  excess  of  authority,  see  02  N.  II.  ()73 ;  108  Penn.  St.  377. 

The  standard  for  inquiry  is  that  of  persons  ordinarily  prudent,  and 
false  information  given  in  response,  such  as  might  lull  the  suspicion 
of  such  persons,  may  be  acceptable  for  protecting  the  pledgee's  interest. 
7  Johns  Ch.  (N.  Y.)  150;  13  Met.  (Mass.)  355.  And  see  Berry  v. 
Gibbons,  L.  R.  8  Ch.  747  {lis  pendens). 

1  S  184  a. 


PLEDGE   OR   PAWN  85 

otherwise  stipulated  between  the  parties.^  And  a  number  of 
securities  may  be  taken  for  the  same  debt  or  engagement, 
leaving  the  secured  party  to  his  election  as  to  enforcing  any 
or  all  in  case  of  default,  but  with  the  right  of  only  one 
possible  satisfaction. 2 

156.  II.  Delivery  in  Pledge.  Until  an  actual  transfer  of 
possession  has  taken  place,  there  is,  to  speak  with  precision, 
no  pledge,  no  bailment;  but,  instead,  an  executory  pledge 
contract  upon  sufficient  consideration,  which  each  may  hold 
the  other  bound  to  perform.  Damages  for  non-performance 
will  be  awarded  the  aggrieved  party  who  sues  as  for  breach 
of  the  contract;  or  perhaps  equity  would  decree  a  speciiic 
performance."  For,  under  a  pledge  contract,  there  is  no  transfer 
of  an  owner's  title,  as  in  the  case  of  sale  or  mortgage,  but 
the  essence  of  the  pledgee's  preference  consists  in  a  transfer 
of  possession,  or  what  we  term  delivery.  In  general,  to  create 
a  pledge,  the  pledgee  should  have  the  possession  and  actual 
control  of  the  property.* 

157.  Delivery,  in  order  to  be  effectual  against  the  world,  should 
be  followed  by  an  acceptance  of  possession ;  and  methods  of 
delivery  and  acceptance  differ,  according  to  the  subject-matter 
and  the  local  situation  of  the  thing.  For  corporeal  chattels 
in  possession  there  should  be  usually  a  delivery  of  those 
chattels  to  the  pledgee  at  once.  But  constructive  delivery 
and  acceptance  is  in  modern  times  much  favored  in  such 
transactions.^ 

^  §  187.  But  a  security  taken  for  a  precise  purpose  should  be  applied 
to  that  precise  purpose  alone,  unless  the  parties  moflify,  as  of  course  they 
may.  See  ante,  147.  And  see  28  Coun.  420;  10  Md.  373;  81  Ky.  527  ; 
2  Johns.  Ch.  (N.  Y.)  418. 

2  §  187;  1  Ala.  23;  Buchanan  v.  International  Bank,  78  III.  500; 
2  Wheat.  (U.  S.)  390.  But  the  presumption  is,  where  successive  loans  are 
made  upon  successive  pledges,  that  each  transaction  shall  stand  by 
itself.     69   111.  32. 

8  The  latter  remedy  is  not  always  available.  See  33  Coun.  476 ;  00 
Conn.  463;  38  Ga.  391 ;  37  Me.  543.' 

*  §  188;  Corbett  r.  Underwood,  83  111.  324.  Distinguish  between  a 
pledge  and  a  contract  for  a  pledge.     74  Conn.  18;  12  R.  I.  77. 

^  §  189.  A  deliveiy  in  pledge  need  not  always  be  contemporaneous 
with  the  loan  of  money,  but  such  delivery  within  a  reasonable  time  will 


86  THE    LAW   OF   BAILMENTS 

158.  If  the  chattels  for  pledge  be  already  in  the  pledgee's 
possession,  for  some  other  purpose,  110  formal  change  of  pos- 
session is  needful,  since  the  pledge  contract  can  operate  as  a 
constructive    transfer.^     And,    where   A  and  B  are   in   joint 

suffice,  so  far  at  least  as  the  immediate  parties  are  concerned.  Hilton  v. 
Tucker,  39  Ch.  D.  669.    Cf.  77  Mo.  423. 

As  for  constructive  delivery,  the  transfer  of  the  bill  of  lading  of  a 
ship  at  sea  or  the  delivery  of  a  warehouse  key  has  long  been  considered 
symbolical  as  a  transfer  of  possession.  And  so  is  it,  at  this  day,  with  the 
transfer  of  bills  of  lading  or  way  bills,  on  inland  transit,  or  of  warehouse 
receipts,  etc.  Even  the  delivery  of  such  muniments  without  a  formal 
indorsement  or  assignment  has,  in  deference  to  mutual  intent  and  the 
loose  usages  of  business,  been  frequently  upheld  as  constructively  suffi- 
cient, at  all  events  between  the  parties  themselves.  17  Wis.  359.  And 
see  164. 

Advancing  on  the  security  of  merchandise  in  transit  or  when  stored  at 
a  warehouse  is  very  common  at  the  present  day ;  and  the  transfer  of  such 
bills  of  lading  or  documents  is  upheld  as  a  constructive  pledge  of  the 
goods  therein  represented,  both  as  against  the  pledgor  and  the  public. 
§  190;  First  Nat.  Bank  v.  Kelly,  57  N.  Y.  34;  Brent  v.  Miller,  81  Ala. 
309;  54  Ark.  225;  Hathaway  v.  Haynes,  124  Mass.  311;  76  Wis.  502; 
Dows  V.  First  Nat.  Exchange  Bank,  91  U.  S.  618.  And  the  exercise  of 
further  dominion  over  the  goods  by  such  pledgor  without  his  pledgee's 
consent  is  tortious  and  ineffective.  71  N.  Y.  353.  But  the  pledgee  should 
seasonably  follow  up  such  constructive  delivery  and  pursue  his  opportu- 
nities of  making  the  corporeal  transfer  complete ;  for  a  symbolized  transfer 
stands  for  something  whose  possession  may  be  made  more  complete,  and 
in  fact  should  be,  in  order  to  hold  firmly  against  all  third  parties.  See 
167  N.  Y.  121  (examining  goods  in  warehouse  is  not  taking  control). 
Such  pledgees  run  certain  risks,  besides  ;  for  a  bill  of  lading  is  sometimes 
issued  iti  duplicate  or  triplicate,  and  the  carrier  may  deliver  in  good  faith 
to  the  holder  of  one  bill,  not  knowing  that  the  other  bill  was  held  in 
security.  Glyn  i'.  East  India  Dock  Co.,  7  App.  Cas.  59,  distinguishing 
Barber  c.  Meyerstein,  L.  R.  4  H.  L.  317.  But  special  stipulation  or  a  local 
statute  may  give  priority  to  the  first  or  original  bill  over  any  duplicate. 
Nat.  Bank  v.  Missouri  R.,  132  Mo.  492.  jNIoreover  the  receipt  or  descrip- 
tion of  goods  in  such  documents  is  prima  facie  only  and  does  not  amount 
to  a  guaranty  that  the  goods  are  as  described.  Shaw  v.  IMerchants  Bank, 
101  U.  S.  557.  Even  though  a  local  statute  should  make  such  instruments 
"  negotiable,"  the  full  advantages  incident  to  a  negotiable  instrument  do 
not  follow.  ]\Iissouri  Pacific  R.  r.  INIcFadden,  1.54  U.  S.  155  (putting 
fraudulently  into  circulation).  As  to  goods  in  a  warehouse,  see  137 
N.  Y.  110;  24  N.  Y.  521. 

^  §  191. 


PLEDGE   OR  PAWN  87 

possession,  the  pledge  to  either  of  them  is  good,  if  both  have 
knowledge  and  give  assent  that  the  property  shall  be  held 
thenceforth  for  the  pledge  alone. ^ 

159.  Delivery  may  be  through  the  medium  of  agents  as  well 
as  by  their  principals  in  person ;  as,  by  a  factor  or  commission 
merchant ;  or,  to  speak  more  generally,  by  any  party  whom 
the  pledgor  has  held  out  as  having  due  authority  to  accomplish 
the  transfer  on  his  behalf.  And,  as  against  the  principal 
pledgor  himself,  it  is  held  sufficient  that  his  agent  has  been 
intrusted  Avith  the  primarj-  document  of  transfer,  according  to 
the  course  of  business,  and  tliat  the  pledgee  acts  upon  faith  of 
such  document.  Agency,  express  or  implied,  confers  authority ; 
and  in  any  case  it  is  sufficient  that  the  owner  consented  to 
have  the  thing  pledged.^ 

160.  As  to  agency  on  a  pledgee's  behalf,  delivery  may  be  to 
some  third  person  for  delivery  over  to  the  creditor.  And 
there  may  be  a  binding  acceptance  by  the  pledgee's  agent, 
acting  for  him  ;  for,  where  property  has  been  pledged  as 
security,  it  is  quite  immaterial  whether  the  pledgee  holds  it 
in  person  or  some  third  person  holds  it  for  him.^  An  agent 
of  the  pledgor,  too,  holding  the  thing  in  his  temporary  pos- 
session, such  as  a  warehouseman,  safe  depositary,  or  hired 
workman,  may,  without  any  local  removal  of  the  thing,  attorn 
over,  and,  as  the  pledgee's  custodian,  hold  it  against  all  the 
world ;  and  this,  even  though  the  agent  is  to  do  some  addi- 
tional work  on  the  thing  pledged,  which  the  pledgor  is  ex- 
pected to  pay  for.* 

161.  The  pledgor  may  sometimes  hold  as  his  pledgee's  agent ; 
and  what  complicates  pledge  delivery  in  tliis  connection  is 
the  modern  doctrine,  that  the  agent  to  take  and  keep  legal 
possession  for  the  pledgee  may  be  no  other  than  the  pledgor 


^  Parsons  v.  Overmire,  22  111.  58 ;  Brown  v.  Warren,  43  N.  H.  430. 

2  §  192;  Cartwright  v.  Wilmerding,  24  N.  Y.  521. 

3  §  192 ;  Woodward  v.  Exposition  Co.,  39  La.  An.  566  ;  Boynton  v. 
Payrow,  67  Me.  587  ;  Brown  c.  Warren,  43  N.  H.  430.  See  46  La.  An. 
1036. 

*  Sumner  v.  Hamlet,  12  Pick.  (Mass.)  76. 


88  THE   LAW   OF   BAILMENTS 

himself.^  But,  as  the  law  declares,  a  pledgor's  possession  on 
his  pledgee's  behalf  should  not  be  a  mere  device  for  the  purpose 
of  defrauding  his  other  creditors  ;  nor,  as  we  may  conjecture, 
ought  the  transaction  to  indicate  that  one,  a  pledgee  by  right, 
has  simply  waived  or  abandoned  his  opportunities  of  accom- 
plishing a  transfer  to  his  own  possession.  And,  whether  the 
pledgor's  agency  for  his  pledgee  can  be  set  up  to  disconcert 
bona  fide  attaching  creditors  or  purchasers  with  claims  in  rem, 
we  may  still  question ;  for  to  permit  this  doctrine  of  a 
pledgor's  agency  to  operate,  except  as  between  the  parties 
themselves,  and,  perhaps,  the  general  public,  is  practically  to 
dispense  with  dehvery  altogether,  and  nullify  the  fundamental 
rule  of  bailment.^ 

162.  The  element  of  notice  to  another  has  sometimes  to  be 
considered  in  connection  with  delivery.  Where  an  agent  of 
the  pledgor  holds  the  thing  which  is  pledged  by  the  transfer 
of  symbol  or  muniment  of  title,  some  notice  to  this  custodian 
may  be  needful,  in  order  that  he  may  attorn  over,  and  so  give 
the  pledgee's  claim  a  clear  operation.  So,  too,  is  the  trans- 
fer of  certain  kinds  of  property  attended  with  peculiar  solem- 
nities not  unlike  in  chaiacter.  Indeed,  what  we  may  call 
notice  to  the  fundholder,  custodian,  or  indebted  party  is  often 
an  important  element  in  completing  the  security  of  a  pledgee.^ 

1  §  193;  Cooper  v.  Ray,  47  111.  53;  2  Lowell  (U.  S.),  519;  Parshall  v. 
Eggert,  54  N.  Y.  18. 

2  §  193.  See  38  Ga.  391;  6  La.  An.  516.  To  this  subject  we  shall 
presently  recur.  See  post,  168,  169.  But  here  we  may  add  that  this  dan- 
gerous doctrine  of  a  pledgor's  holding  as  his  pledgee's  agent  is  checked  in 
some  of  the  latest  cases,  which  still  maintain  that  possession  by  the 
pledgee  is  of  the  very  essence  of  a  pledge,  so  that  where  the  pledgee 
never  had  clearer  possession  there  is,  as  to  third  persons  like  hona  Jide 
transferees  or  attaching  creditors  of  the  pledgor,  no  lien  or  security,  more 
than  under  a  mere  contract  for  a  pledge.  Casey  v.  Cavaroc,  96  U.  S.  467  ; 
Thompson  v.  Dolliver,  132  INIass.  103;  18  Hun  (N.  Y.),  187. 

3  §§  194.  195.  See  People's  Bank  v.  Etting,  108  Penn.  St.  258.  Stock 
in  a  chartered  company,  for  instance,  may  pass,  for  some  purposes,  by  a 
mere  delivery  of  the  scrip  or  certificate  ;  but,  in  order  to  make  a  complete 
transfer,  as  against  the  world  and  the  company  itself,  formalities  of  regis- 
try or  transfer  at  the  company's  office  may  be  found  essential.  See 
Newton  r.  Fay,  10  Allen  (Mass.),  505  (statute  changed  in  1884)  ;  Wilson 


PLEDGE   OR  PAWN  89 

163.  Other  formalities,  such  as  registry,  are  sometimes  re- 
quired as  against  the  public  and  more  particularly  lien-credi- 
tors of  the  pledgor  in  certain  pledge  transactions  ;  though 
commonly,  if  the  pledgee  gains  full  possession  before  conflict- 
ing liens  attach  to  the  thing,  sucli  actual  and  continuous 
possession  on  his  part  is  fully  effective.^ 

164.  Indorsement  or  formal  assignment  of  the  incorporeal 
thing  is  always  desirable  in  order  to  give  the  pledgee  a  con- 
trolling possession ;  yet  informalities  or  omissions  in  this 
respect  are  lightly  regarded  by  the  courts,  so  long  as  the 

V.  Little,  2  Comst.  (N.  Y.)  443 ;  Pinkerton  v.  Railroad,  42  X.  H.  424 ; 
5  Penn.  St.  41;  98  U.  S.  514.  Local  policy  is  variable  in  this  respect; 
but  there  should  be  at  least  a  delivery  of  the  pledgor's  certificate  of  stock. 
See  31  La.  An.  149 ;  7  Lea  (Tenn.),  149  ;  4.3  Fed.  (U.  S.)  452  ;  4  Woods 
C.  C.  (U.  S.)  464.  Notice  to  tlie  company  is  an  element  of  corresponding 
importance  in  the  pledge  delivery  of  some  other  incorporeal  kinds  of 
chattels.  Bruce  r.  Garden,  L.  R.  5  Cli.  32  (assignment  of  insurance 
policy)  ;  88  N.  W.  925  (Wis.  1902);  Hewins  v.  Baker,  161  Mass.  320; 
132  Mass.  277  (of  a  saving3  bank  book).  Timely  notice  to  the  carrier  or 
warehouseman  of  one's  claim  may  establish  his  duty,  as  against  parties 
with  duplicate  instruments,  etc.;  and  so,  too,  to  the  debtor  on  a  bond 
or  note,  as  fixing  the  party  to  whom  he  is  liable  for  payment.  See  7 
App.  Cas.  475;  92  Penn.  St.  518. 

In  short,  such  seasonable  notice  to  fundholder,  custodian,  or  debtor 
maybe  of  much  importance  in  completing  a  delivery  and  retention  of 
possession  as  against  third  parties  under  the  circumstances  of  a  given 
case;  though  less  so,  certainly,  as  between  the  pledge  parties  themselves. 
As  to  the  element  of  seasonable  notice  to  one  intending  to  buy  or  advance 
upon  the  pledged  thing,  while  the  pledgee  is  out  of  possession,  see  post, 
168,  169.  As  to  registry  of  bonds  received  in  pledge,  as  an  act  of  prudence 
on  the  pledgee's  part,  see  109  Fed.  (U.  S.)  16. 

1  §  196.  See  local  legislation,  15  La.  An.  165 ;  30  La.  An.  943.  And 
see  7  La.  An  225;  32  La.  An.  586  (code  requiring  a  jjledge  of  movable 
property  to  be  in  writing,  in  order  to  affect  third  parties).  It  is  more 
commonly  a  result  of  the  cardinal  distinction  between  pledge  and  chattel 
mortgage,  that  the  latter  sort  require  registration,  while  the  former 
neither  require  nor  admit  of  it ;  and  registry  may  usually  be  dispensed 
with  in  either  case,  wherever  the  secured  party  holds  visible  and  tangi- 
ble possession  of  the  thing;  nor  should  statute  notice  to  the  world  be  held 
indispensable  as  between  the  security  parties  themselves.  Local  statute 
permits  the  public  record  of  a  pledge  for  general  protection,  where  the 
pledgor  retains  possession.     99  III.  App.  284. 


90  THE   LAW   OF   BAILMENTS 

thing  itself,  the  muniment  or  voucher,  was  duly  handed  over 
with  the  intent  of  pledge.  ^ 

165.  Under  suitable  circumstances  there  is  rather  a  permissive 
taking  by  the  pledgee  than  any  active  transfer  of  possession ; 
but  mutual  assent  is,  at  all  events,  essential  to  pledge  con- 
tracts, liowever  informally  it  may  have  been  expressed.^ 

166.  T'wo  leading  conclusions  may  be  dra-wn  from  the  pre- 
cedents which  form  the  modern  mosaic  of  pledge  delivery. 
1.  That  in  the  growing  complexity  of  commercial  and  mer- 
cantile transactions,  with  so  many  new  classes  of  incorporeal 
rights  coming  into  the  list  of  things  personal,  the  disposition 
increases  to  apply  to  all  chattel  transfers  the  test  of  mutual 
intent  on  equitable  considerations  ;  so  that  the  English  and 
American  courts,  while  abating  little  of  the  common-law 
theory  that  full  change  of  possession  must  attend  every 
pledge  transaction,  have  come  to  swerve  very  far  from  it  in 
practice.  2.  That,  with  the  present  laxity  of  construction, 
pledge  delivery  seems  to  comport  itself  differently  under  these 
three  leading  aspects :  (a)  as  between  the  pledge  parties  them- 
selves, (^)  as  between  the  pledge  parties  and  the  pledgor's 
general  creditors,  and  (c)  as  between  pledge  parties  and 
those  like  a  pledgor's  attaching  creditoi'S  or  purchasers,  or 
new  parties  lending  on  security  of  tlie  thing,  who  acquire 
intervening  rights  in  rem  without  notice.^     IMoreover,  as  we 

1  §  197.  See  Gay  v.  IMoss,  34  Cal.  125;  Fluker  v.  Bullard,  2  La.  An. 
338;  White  v.  Piatt,- 5  Denio  (X.  Y.),  269;  Dunn  v.  Meserve,  58  N.  H. 
429.  Savings  bank  book  given  in  pledge  held  sufficient,  as  against 
trustee  process,  though  not  formally  assigned  with  notice  to  the  company 
as  rules  required.  Taft  v.  Bowker,  132  jSIass.  277.  And  see  Boynton  v. 
Tayrow,  67  Me.  587  ;  Holmes  v.  Bailey,  92  Penn.  St.  57. 

2§  198.  See  Parsons  v.  Overniire,  22  111.  58;  6  Mass.  339  (assent  of 
insolvent's  creditors  needful  to  his  pledge  for  their  benefit). 

*  §  199.  As  between  the  parties  themselves,  their  executory  contract 
so  upholds  the  transaction,  while  manual  delivery  continues  incomplete, 
that  the  pledge  security  holds  by  construction,  though  accomi^anied  by 
no  actual  change  of  possession.  As  between  the  pledge  parties  and 
general  creditors,  such  transactions  can  only  be  attacked  by  the  latter  for 
fraud  upon  them ;  and  if  there  be  a  bona  fide  pledge  contract,  ineffectual 
for  want  of  delivery,  the  pledgee  may,  at  any  time,  take  full  possession, 
and  maintain  his  priority  over  them ;  for  here,  at  all  events,  is  an  execu- 


PLEDGE   OR  PAWN  91  <^ 


have  seen,  (^7)  the  element  of  notice  to  stakeholder,  custodian,  \ 
or  debtor,  is  in  many  transactions  a  vital  one  ;  and  the  pledgee's  \ 
rights  as  concerns  such  a  party  require  consideration.^  /\^ 

167.  III.  Bailment  in  Pledge  Pending  full  Accomplishment  of 
the  Secured  Undertaking.  The  situation  of  the  pledge  parties 
towards  the  thing,  after  the  transfer  of  possession  has  been 
virtually  completed,  becomes  that  of  bailor  and  bailee  under 
a  mutual-benefit  bailment.  What,  then,  are  the  pledgee's 
duties,  and  what  his  rights,  while  the  debt  is  maturing,  or  the 
engagement  outstanding,  for  which  the  pledge  was  given  7^ 

168.  The  pledgee's  first  duty  is  to  keep  possession.  What  at 
once  impresses  us  as  characteristic  of  this  bailment  is,  that 
piincipal  and  collateral  work  along  together  towards  one  pri- 
mary attainment :  namely,  the  discharge  of  some  debt  or  duty 
which  is  owed  to  the  bailee ;  so  that  to  disjoin  the  two  would 
be  fatal  to  the  pledge.  Of  the  first  importance  is  it,  then,  to 
every  pledgee  to  keep  the  bailment  in  force  by  maintaining 
the  pledge  possession  he  has  acquired.  For  Avhenever,  by  de- 
livering back  the  thing  to  his  pledgor,  he  manifests  a  willing- 


tory  contract  in  his  favor.  But,  as  to  those  acquiring  intervening 
riglits  in  rem,  without  notice  of  the  pledge,  the  pledgee  who  has  not 
taken  full  possession  generally  fails  to  gain  precedence ;  though  to  this 
might  sometuiies  be  opposed  the  suggestion  that  the  pledgor  continues  iu 
possession  as  his  pledgee's  bnnnjide  agent;  or,  possiblj',  that  the  delay  in 
completing  certain  formalities  of  delivery  had  occurred  without  fault  on 
the  pledgee's  part,  or  that  such  formalities  were  under  the  peculiar  aspect 
of  the  case  needless.  Quaere,  whether,  as  among  third  parties  with  in- 
tervening rights  in  rem,  one  who  buys  or  advances  does  not  stand  on  a 
stronger  footing  than  a  mere  attaching  creditor  of  the  pledgor. 

^  In  general,  we  may  add,  the  position  of  a  pledgee  is  far  less  favorable 
for  maintaining  his  cause  where  he  is  out  of  full  personal  control,  and 
must  take  the  offensive,  than  where  he  has  such  control  and  has  only  to 
defend.  Our  modern  courts  incline  to  balance  carefully  the  equities  of 
all  who  maintain  conflicting  lien  rights  against  one  another  ;  determining 
upon  all  the  circumstances  which  party  should  have  priority.  Possession 
bona  fide  acquired  and  maintained  on  the  faith  of  a  valuable  service  or 
payment  is  a  most  decisive  circumstance  in  such  cases;  and  especially 
needful  is  a  delivery  or  procuring  possession  of  the  thing  where  the 
pledge  transaction  rests  upon  parol  joroof  of  words  and  conduct. 

2  §  200. 


92  THE   LAW   OF  BAILMENTS 

ness  to  abandon  sncli  possession,  the  benefit  of  his  security  is 
lost,  and  bailment  and  pledge  come  to  an  end ;  notwitlistand- 
ing  whicli  the  principal  debt  or  obligation  continues  as  be- 
fore, and  to  secure  it  there  might  be  some  later  pledge 
contract  with  a  new  taking  of  possession. ^  We  are  still 
to  observe,  however,  that  a  pledgor  may  gain  repossession  as 
the  pledgee's  authorized  bailee  or  agent,  or  wrongfully ;  and 
in  either  case  the  pledgee's  right  would  not  necessarily  be 
lost.  Hence,  the  fact  of  redelivery  or  repossession  remains 
open  to  explanation.^ 

169.  But  only  as  bet^ween  the  pledge  parties  themselves  can 
the  pledge  continuance  in  such  cases  be  confidently  asserted. 
Whether,  under  circumstances  of  dispossession  or  of  rede- 
livery without  intending  to  abandon  his  security,  the  pledgee 
can  follow  the  thing  into  the  hands  of  some  bona  fide  holder 
for  value,  to  whom  the  pledgor  has  meantime  transferred  it, 
is  quite  another  matter ;  and  in  some  instances  he  manifestly 
cannot,^  Here  reappear  those  distinctions  lately  dwelt  upon, 
which  favor  the  pledgee  not  in  full  possession,  more  especially 
as   against  his  pledgor ;  with  whom,    even  were  one  pledge 

1  §  201.  See  as  a  peculiar  instance  in  point,  Citizens'  Nat.  Bank  v. 
Hooper,  47  Md.  88.  And  see  in  general,  Casey  v.  Caveroc,  96  U.  S.  467; 
Black  V.  Bogert,  65  N.  Y.  601. 

■■2  §  202.  If  the  thing  was  redelivered  for  a  temporary  purpose  only, 
and  on  the  understanding  that  it  was  to  be  afterwards  returned,  the 
pledgee  may  demand  and  recover  it  again.  5  Bing.  N.  C.  136 ;  14  Pick. 
(Mass.)  497;  47  III.  53;  Hutton  v.  Arnett,  51  111.  198.  Nor  will  the 
pledgee  be  out  of  control  if  he  lets  his  pledgor  keep  or  regain  possession 
or  control,  merely  as  his  agent  or  for  some  otlier  purpose  consistent  with 
liis  own  lien.  2  Lowell  (U.  S.),  519;  101  Mass.  254;  114  IMass.  116; 
j\loors  V.  Wyman,  146  INIass.  60.  The  pledgor's  wrongful  repossession  of 
the  thing,  whether  by  force  or  stratagem,  cannot  debar  the  pledgee's 
rights,  and  may,  if  obtained  with  felonious  intent,  be  punished  as  larceny. 
Henry  v.  State,  110  Ga.  750;  Bruley  v.  Rose,  57  Iowa,  651  (larceny); 
14  Me.  436;  12  Gray  (Mass.),  465;  Coleman  v.  Shelton,  2  McCord  Ch. 
(S.  C.)  126  (equity  jurisdiction  to  compel  redelivery)  ;  126  Ala.  194.  And 
see  as  to  suing  bailor  for  conversion,  5  Denio  (N.  Y.),  269;  146  INIass. 
60;  Bank  v.  Poynter,  (1895)  App.  Cas.  66. 

3  §  202.  Way  v.  Davidson,  12  Gray  (Mass.),  465,  467;  Bodenhammer 
V.  Newsom,  5  Jones  L.  (N.  C.)  107. 


PLEDGE   OR   PAWN  93 

allowed  to  end,  the  executory  contract  for  another  might  sub- 
sist. And  here,  too,  Ave  see  the  pledgee  favored  as  against 
the  pledgor's  general  creditors,  where  he  might  not  have  been 
had  a  single  creditor  attached,  nor  could  he  as  against  pa}- 
ments  or  advances  by  third  persons  who  may  have  acquired 
rights  171  rem  honestly  and  without  notice,  while  the  pledgee 
is  intentionally  and  carelessly  out  of  possession. ^ 

170.  Once  more  the  element  of  seasonable  notice  confronts 
us.  By  vigilance  and  seasonable  notice  of  his  claim  to  third 
parties  before  they  acquire  adverse  claims  upon  the  thing,  a 
pledgee  may  preserve  his  rights  unimpaired,  even  though  not 
retaining  strict  personal  possession  thereof ;  for  thus  is  the 
third  party  deprived  of  that  hona  fide  character  which  gives 
him  a  priority,  as  one  misled  to  his  detriment  without  fault 
and  innocently.^ 

171.  Where  the  pledgee  receives  possession  again,  after  hav- 
ing redelivered  the  tiling  to  the  pledgor  for  some  temporary 
purpose,  the  pledge  will  prevail  once  more  over  liens  on  the 
thing  afterwards  acquired  by  third  persons  ;  for,  even  were 
the  old  pledge  no  more,  a  new  and  valid  one  would  tlius  be 
completely  constituted.     And  so,  too,  would  it  be  where  the 

1  Ante,  166.  See  ISIoors  v.  Wyman,  146  Mass.  60;  Bank  v.  Poynter, 
(1895)  App.  Cas.  56.  Pledge  no  longer  of  avail  against  subsequent  pur- 
chaser, pledgee,  etc.  Kimball  r.  Hildreth,  8  Allen  (Mass.),  167  ;  Shaw  v. 
Wilshire,  65  Me.  485  ;  Babcock  v.  Lawson,  5  Q.  B.  D.  284.  Cf.  5  Bing. 
N.  C.  136 ;  Clare  v.  Agerter,  47  Kan.  605  (subsequent  mortgagee  of  the 
chattel).  Yet,  whenever  the  pledgee's  dispossession  by  his  pledgor  is 
under  circumstances  imputing  to  himself  no  fault  or  delay,  nor  a  volun- 
tary consent,  we  presume  that,  unless  the  property  be  of  that  negotiable 
character  which  gives  to  every  hona  fide  holder  for  value  a  clear  title,  the 
pledgee  will  be  allowed  to  regain  the  thing,  even  as  against  intervening 
lien-creditors  of  the  pledgor,  who  had  supposed  the  property  unincum- 
bered.    §  202.    And  see  American  Co.  v.  German,  126  Ala.  194. 

-  §  202.  Palmtag  v.  Doutrick,  59  Cal.  154 ;  Carrington  r.  Ward,  71 
N.  Y.  360.  In  general,  notice  to  an  intending  pledgee  (or  purchaser)  of 
something  adverse  to  the  pledgor's  right  to  pledge  or  raise  money  can- 
not prudently  be  disregarded  by  him.  See  150.  In  any  case,  a  third 
party  charged  with  notice,  at  any  stage,  must  deal  fairly  by  the  pledgee 
under  the  circumstances.  See  Withers  v.  Sandlin,  36  Fla.  419  ;  Hazard 
V.  Fiske,  83  X.  Y.  287. 


94  THE   LAW   OF  BAILMENTS 

pledgee  regained  possession  of  what  iiad  been  wrongfully  or 
deceitfully  taken  from  him.^ 

172.  We  next  inquire  what  degree  of  care  and  diligence  to- 
wards the  thing  pledged  our  law  exacts.  The  rule  is  essen- 
tially that  which  applies  to  the  other  bailments  for  mutual 
benefit  already  examined:  namely,  by  reason  of  delivery  and 
acceptance  and  a  transfer  of  the  thing  to  his  keeping,  the 
pledgee  becomes  bound  to  exercise  ordinary  care  and  diligence 
towards  it,  and,  to  a  corresponding  extent,  is  answerable  for 
negligence,^  Ordinary  diligence  is  a  relative  term  here  as 
elsewhere,  and  signifies  that  diligence  wliich  persons  of  com- 
mon prudence  usually  bestow  towards  such  property  or  upon 
their  own  property  at  the  time  and  place  in  question  and 
under  like  circumstances  ;  or,  if  the  pledge  be  to  bankers  or 
others  whose  vocation  implies  skill  or  unusual  facilities,  such 
diligence  as  those  commonly  prudent  of  that  class  are  wont 
to  observe  in  such  affairs.^ 

173.  More  than  a  mere  custody  is  presumable  on  a  pledgee's 
part  in  certain  instances  ;  and  the  true  intendment  of  the 
transaction  should  prevail.  Thus,  when  promissory  notes  or 
other  negotiable  instruments  are  taken  as  collateral,  which 

1  §  203.    Cooper  v.  Ray,  47  111.  53 ;  47  Kan.  604. 

2  §  204;    ante,  79,  111  ;  cases  pos^. 

3  It  follows  that,  if  the  pledge  be  lost  by  casualty  or  unavoidable  acci- 
dent, or  be  taken  or  destroyed  by  superior  force,  or  if  it  perish  from  some 
intrinsic  defect  or  weakness,  and  no  act  was  done  or  omitted  by  the  pledgee 
in  the  premises  which  can  be  construed  into  culpable  negligence  or  miscon- 
duct contributing  to  the  loss,  the  pledgee  cannot  be  held  answerable.  Nor 
is  a  pawnbroker  liable  for  pawned  articles  stolen  from  his  shop  by  burglars 
if  he  exercised  ordinary  diligence.  56  How.  Pr.  (N.  Y.)  68.  But  on 
the  other  hand  a  bank,  failing  in  ordinary  care  toward  pledged  negotiable 
bonds  and  paper,  for  guarding  against  the  special  danger  of  burglary  or 
embezzlement,  must  be  held  liable  for  loss.  Ouderkirk  v.  Central  Bank, 
119  N.  Y.  263  (failing  to  keep  record  or  examination  of  such  securities). 
As  against  false  tests,  it  may  be  said  that  theft  establishes  of  itself  neither 
responsibility  nor  irresponsibility  in  a  bailee.  §  204.  And  see  Petty  v. 
Overall,  42  Ala.  145;  Third  Nat.  Bank  v.  Boyd,  44  Md.  47;  Dearborn 
V.  Union  Nat.  Bank,  61  Me.  369  ;  Scott  i:  Crews,  2  S.  C.  n  s.  522.  As 
to  burden  of  exonerating  and  presumptions  generally,  our  usual  rule  ap- 
plies.    See  119  N.  Y.  263;  98  Penn.  St.  SO  ;  §  205. 


PLEDGE  OR  PAWN  95 

must  mature  before  the  principal  obligation,  it  should  be  pre- 
sumed that  the  pledgee  was  expected  to  take  heed  to  present 
and  try  to  collect  upon  their  maturity  and  apply  the  proceeds 
on  account  to  the  secured  debt  or  engagement.^  And  so,  too, 
where  book  debts  or  other  demands  of  the  pledgor,  already 
due,  are  received  in  pledge.^  But  wherever  the  pledgee  is 
bound  to  take  active  measures  upon  his  security,  ordinary 
diligence  continues  the  full  measure  of  his  resj3onsibility  under 
all  the  circumstances ;  and  to  demand  more  would  require  an 
express  engagement  on  his  part.  The  duty  thus  exacted  can 
hardly  be  presumed  to  extend  beyond  a  prudent  attempt  to 
collect  by  presentment  and  dunning,  short  of  the  personal 
risk  and  expense  of  a  suit ;  and  if  such  measures  fail  he  may 
notify  his  pledgor  of  the  situation  and  throw  upon  the  latter 
the  burden  and  risk  of  further  proceedings.^ 

174.  So,  too,  the  duty  of  realizing  the  increment  of  the  pledge 
may  rest,  accordi'ng  to  the  same  measure,  and  under  corre- 
sponding circumstances  upon  the  pledgee,  by  way  of  account 
with  his  pledgor.*    Animals  and  their  progeny  must  be  looked 

1  §  206.  As  to  the  duty  of  presenting  and  trying  to  collect  short-time 
paper,  see  Reeves  v.  Plough,  41  Ind.  204  ;  May  v.  Sharp,  49  Ala.  140;  72 
Md.  441;  VVhitten  v.  Wright,  34  Mich.  92;  71  Iowa,  671;  50  f^ed. 
(U.  S.)  798;  34  W.  Va.  721;  12  Minn.  232;  30  Kan.  386;  19  Mich.  132; 
Hanna  v.  Holton,  78  Penn.  St.  334. 

2  10  Bosw.  (N.  Y.)  208 ;  5  Sneed  (Tenn.),  79  ;  16  W.  Va.  717. 

3  §  206.  For  his  supine  negligence  (especially  in  failing  to  present  a 
note  so  as  to  charge  an  indorser)  the  pledgee  may  well  be  answerable. 
See  cases  su;jm;  Mauck  v.  Trust  Co.,  113  Ga.  242;  Sample  Co.  v.  Detwiler, 
30  Kan.  386.  But,  otherwise,  if  using  ordinary  care  and  diligence,  there 
is  no  liability.  The  pledgee  does  not,  by  suing  upon  the  collateral  note 
in  his  own  name,  become  the  surety  of  his  pledgor.  Should  the  principal 
debt  be  meanwhile  paid  him,  or  the  secured  engagement  fulfilled,  the 
pledgee  ought  rather  to  return  such  securities  than  continue  to  hold 
and  attempt  collecting  them;  since  no  pledgee  can  be  forced  to  accept 
such  security  in  part  payment  of  the  principal  undertaking.  Cardin  v. 
Jones,  23  Ga.  175;  8  Me.  383;  Reeves  v.  Plough,  41  Ind.  204;  Burrows 
V.  Bangs,  34  Mich.  304.     See  Culver  v.  Wilkinson,  145  U.  S.  265. 

*  §  207.  McCrea  v.  Yule  (N.  J.  Supr.  1902);  Whitin  v.  Paul,  13  R.  I. 
40  (ordinary  diligence  in  collecting  periodical  interest  or  coupons  on  note 
or  bond).     Increments  go  in  aid  of  the  pledge,  44  A.  526. 


96  THE  LAW  OF  BAILMENTS 

after ;  and  in  various  other  instances  there  is  more  than  a 
mere  custody  expected  of  the  pledgee. ^ 

175.  In  employing  his  own  agents  about  the  pledge,  the 
pledgee,  like  a  hired  custodian  or  workman,  is  ordinarily 
bound  to  the  pledgor  for  their  negligence  as  for  his  own ; 
though  not  for  their  torts,  as  it  would  appear,  unless  his  own 
negligence  ar  wrong  contributed  to  the  loss.  Where  liable 
to  the  pledgor  for  the  negligence  of  his  own  agents,  the 
pledgee  may  treat  the  agent  as  liable  to  himself ;  but  he  is 
not  answerable  for  the  negligence  of  those  whose  agency  is 
derived  from  the  pledgor.^     Where  the  pledgee  has  not  taken 

1  See  45  Barb.  (N.  Y.)  Ill  (keeping  up  insurance  premiums  by  agree- 
ment) ;  Second  Nat.  Bank  c.  Sproat,  55  Minn,  14  (carrying  on  a 
manufacture) . 

So  strongly  does  the  law  defer  to  the  mutual  intent  of  tlie  pledge 
parties,  that  an  obligation  on  the  pledgee's  part  to  collect,  sue,  or  do  more 
than  keep  custody  of  the  securities  is,  when  enforced,  more  frequently 
because  they  evidently  so  intended,  than  as  a  matter  to  rest  upon  mere 
presumption.  The  pledgee  of  stock  is  not  to  watch  the  market  fluctua- 
tions and  sell  on  good  opportunity,  but  the  pledgor  should  at  least  notify 
him  when  he  deems  it  prudent  to  sell.  Richardson  v.  Ins.  Co.,  27  Gratt. 
(Va.)  749.  And  see  jmst,  remedies  on  default  of  pledgor.  Receiving  in 
pledge  long  paper  or  other  negotiable  collaterals  which  are  not  to  mature 
until  considerably  later  than  the  principal  debt  or  engagement,  justifies 
the  presumption  that  the  pledgee  was  not  to  wait  and  collect,  but  might 
sell  them  like  any  other  pledge,  should  the  pledgor  be  in  default.  And 
even  where  bound  to  collect  the  security  at  all,  the  pledgee's  responsi- 
bility, we  must  bear  in  mind,  is  limited  to  the  actual  loss  to  which  his 
negligence  may  have  contributed.  He  would  apparently  be  justified 
under  any  circumstances  in  returning  the  collaterals  seasonably  to  the 
debtor  and  getting  altogether  rid  of  the  burden  of  attempting  to  realize 
upon  them;  forfeiting  thereby  a  pledge  of  little  or  no  advantage  to  him. 
See  §  208;  Morris  Canal  Co  v.  Lewis,  1  Beasl.  (N.  J.)  323  ;  3  Johns.  Ch. 
(N.  Y.)  614;  Androscoggin  R.  r.  Auburn  Bank,  48  Me.  335;  36  Wis.  85. 

The  damages  in  case  of  a  culpable  loss  of  the  pledge  by  the  pledgee  is 
the  difference  between  the  value  of  the  pledge  and  the  secured  debt  due 
himself,  principal  and  interest.  Union  Nat.  Bank  v.  Post  (111.  1901),  61 
N.  E.  507. 

2  §  209 ;  6  Cal.  643  ;  Androscoggin  R.  v.  Auburn  Bank,  48  IMe.  335. 
But  as  to  liability  for  his  lawyer's  negligence  or  misconduct,  see  1  La. 
An.  344.  These  general  doctrines  apply  in  the  case  of  a  corporate  pledgor 
or  pledgee,  as  well  as  to  individuals  who  choose  to  become  principals  in 


PLEDGE  OR  PAWN  97 

full  possession,  but  gives  the  pledgor  access,  it  is  the  pledgor's 
duty  to  exercise  ordinary  care  and  diligence  against  loss  on 
his  own  part,  or  else,  as  in  other  instances  of  a  mixed  custody, 
he  cannot  hold  the  pledgee  liable  for  a  loss.  ^ 

176.  Every  pledgee  is  bound  to  exercise  good  faith,  as  well  as 
due  diligence,  with  reference  to  the  cluittel  in  his  keeping. 
He  should  not  transfer  it  as  the  full  owner  thereof,  nor  mis- 
appropriate, nor  put  it  to  a  different  use  from  that  mutually 
intended,  nor  refuse  to  deliver  up  the  pledge  without  good 
excuse  upon  the  pledgor's  fulfilment,  or  offer  to  fulfil,  all  that 
the  principal  engagement  bound  him  to ;  and  il  the  pledgee  so 
misconducts,  he  will  be  held  strictly  answerable  for  the  safety 
of  the  pledge  as  a  tortious  possessor.^  Nor  should  a  pledgee 
as  against  his  pledgor  volunteer  the  title  of  a  third  person  to 
the  thing.^  Neither  income  or  produce,  nor  the  capital  of  the 
thing  pledged,  can  be  rightfully  diverted  to  other  uses  than 
the  secured  undertaking  contemplated.'* 

177.  The  pledgee's  right  to  use  the  pledge  has  been  sometimes 
considered.  And,  notwithstanding  some  trivial  distinctions 
laid  down  by  the  earlier  authorities,  we  ajjprehend  that  the 
true  principle  here  is,  that  a  pledgee  has  neither  the  right 
to  derive  personal  profit  from  the  pledge,  nor  is  under  obliga- 
tion to  incur  personal  charge  about  it ;  but  that,  on  a  final 
reckoning,  the  profit  or  beneficial  use  goes  really  to  the 
credit  of  the  pledgor,  while  the  pledgee's  charges,  suitably 
incurred  in  course  of  the  bailment,  go  to  his  own  credit.  And 
the  fairness  of  this  distinction  we  perceive  at  once  when  we 

such  a  bailment  while  employing  agents.  See  48  Me.  335 ;  Third  Nat.  Bank 
V.  Boyd,  44  Md.  47;  78  N.  Y.  454;  Oudekirk  v.  Central  Bank,  119 
N.  Y.  203. 

1  Willetts  V.  Hatch,  132  N.  Y.  41. 

'-  §  210.  Lawrence  v.  Maxwell,  53  N.  Y.  19 ;  2  Pick.  (Mass.)  206. 
But  cf.  184,  post. 

8  49  N.  Y.  Super.  (N.  Y.)  226.     And  see  8,  ante. 

*  It  is  wrongful  for  the  pledgee  to  surrender  the  security  to  the  party 
liable  thereon  without  any  authority  from  the  pledgor.  Uphani  v. 
Barbour,  Minn.  (1896)  ;  Manton  v.  Robinson,  R.  I.  (1896).  Buc  cf. 
Donnell  v.  Wyckoff,  49  N.  J.  L.  48;  Jeanes's  Appeal,  116  Penn.  St.  573, 
as  to  substituting  other  genuine  stock  for  that  originally  given. 

7 


98  THE  LAW  OF  BAILMENTS 

consider  subjects  of  considerable  value  —  such  as  a  herd  of 
cattle,  instead  of  a  single  animal  —  placed  in  pledge.^  It 
follows  that  if  the  pledge  consist  in  good  stock,  or  other 
valuable  securities,  yielding  dividends  and  profits,  the  pledgee 
cannot  avail  himself  of  such  dividends  and  profits,  save  as  in 
discharge  pi^o  tanto  of  the  secured  debt  or  engagement,  and 
(if  such  there  be)  of  accruing  interest.^  A  personal  use  of  the 
pledge  by  wearing  is  not  presumably  allowed,  in  case  of 
pawned  garments  or  jewels. ^ 

178.  Antichresis,  or  keeping  down  interest  or  usury  by  the 
profits  of  the  pledge  in  course  of  its  use,  is  a  peculiar  transac- 
tion of  ancient  times  not  favorably  regarded  at  this  day  and 
scarcely  known ;  for  the  true  course  of  pledge  parties  is  to 
agree  upon  a  certain  rate  of  interest  to  be  settled  by  the 
pledgor,  as  well  as  the  principal.* 

179.  While  a  pledgee  has  the  right  to  hold  both  pledge  and 
increments  as  security,  he  is  accountable  for  both  when  the 
pledge  is  extinguished.^ 

180.  Necessary  and  proper  expenses  incurred  by  a  pledgee 
about  the  thing  pledged  must  be  reimbursed  by  the  pledgor; 

1  §  211.  For  various  petty  distinctions  as  to  milking  a  cow,  etc.,  see 
Story,  Bailm.  §§  329,  330;  2  Ld.  Raym.  909,  917  ;  Owen,  123.  Where 
the  use  is  merely  an  offset  to  the  trouble  of  keep,  or  an  understanding 
may  be  presumed  in  trivial  matters  of  pawn,  the  law  manifests  little 
concern. 

2  §  212.  Androscoggin  R.  v.  Auburn  Bank,  48  Me.  335 ;  8  Mo.  App. 
118;  53  N.  Y.  19.  And  so,  too,  as  to  net  profit  made  by  letting  the 
pledged  chattel  to  hire.  15  Ala.  562;  Hunsaker  v.  Sturgis,  29  Cal.  142  ; 
Gilson  V.  Martin,  49  Vt.  474. 

^  For,  though  positive  injury  might  not  ensue,  such  wear  m.ust  be 
humiliating  and  otherwise  distasteful  to  a  cleanly  owner.  §  211.  See 
Scott  0.  Reid,  83  Minn.  203.    Cf.  176  Mass.  433. 

^  §  213.  To  this  Roman  antichresis,  the  unpopular  "  Welsh  mortgage  " 
of  our  law  largely  corresponded.  It  is  probably  more  because  of  its 
oppressiveness  to  the  debtor  than  any  inconvenience  which  the  creditor 
might  suffer,  that  we  find  so  little  trace  of  this  transaction  in  modern 
jurisprudence. 

6  §  214.  See  Thompson  v.  Patrick,  4  Watts  (Penn.),  414;  Merrifield  r. 
Baker,  9  Allen  (Mass.),  29  (pledgee  liable  for  return  premiums  received 
on  an  insurance  policy). 


PLEDGE    OR   PAWN  99 

and  this  includes  the  reasonable  charges  incurred  for  its  keep 
and  preservation,  for  protecting  the  title,  or  for  making  the 
security  available  on  maturity.  For  all  such  expenses  the 
pledge  becomes  security;  including,  as  it  would  appear,  even 
those  wliich  are  extraordinary,  if  needful  and  proper  under 
the  peculiar  circumstances  ;  but  expenses  and  charges  exces- 
sive in  amount,  or  incurred  out  of  the  line  of  the  pledgee's 
duty,  are,  unless  the  pledgor  authorized  them,  chargeable 
neither  against  the  latter  personally  nor  upon  the  pledge.  As 
to  charges  for  the  pledgee's  own  services,  this  is  a  matter  of 
delicacy,  and  must  depend  largely  upon  mutual  intent  and 
the  peculiar  circumstances  of  each  case.^ 

181.  The  pledgee  of  stock  has  no  right,  apparently,  to  vote 
upon  it  as  owner;  and  at  all  events,  he  ought  not,  where, 
under  the  mode  of  acquiring  transfer,  he  lias  escaped  the 
lia})ilities  of  a  stockholder.^ 

182.  The  pledgee  has  the  right  to  an  undisturbed  possession 
of  the  thing  pledged  to  him  during  the  full  accoinplishment  of 
the  bailment  purpose ;'  and  hence  may  sue,  not  only  the 
pledgor,  but  all  third  persons  "vyho  wrongfully  invade  this 
right.     He  may  seek  to  recover  the  chattel  in  replevin,  or  sue 

1  §  215.  Assessments  rightfully  paid  upon  pledged  stock  are  a  proper 
charge  for  adjustraent  with  the  pledgor.  McCalla  r.  Clark,  55  Ga  5o.  A 
pledgee's  personal  use  of  the  thing,  incidentally  to  its  custody,  should 
here  be  taken  into  account  against  him,  nor  ought  compensation  for 
ordinary  performance  to  be  readily  allowed,  in  the  absence  of  usage  or 
some  suitable  stijiulation  in  advance.  The  allowance  of  interest  on  the 
principal  debt  fulfils  in  many  pledge  transactions  the  object  of  such  com- 
pensation ;  but  interest  or  special  compensation,  wherever  properly  allow- 
able to  a  pledgee,  will  be  covered  by  the  security ;  and,  where  benefit 
accrues  to  the  pledgor  from  the  pledgee's  special  and  reasonable  exertion,  a 
special  remuneration  might  not  unreasonably  be  claimed. 

2  §  216;  McDaniels  r.  Manuf.  Co.,  22  Vt.  274  ;  10  Allen  (IMass),  505 ; 
26  Hun  (N.  Y.),  453  (pledgee  restrained  from  voting).  But  voting  thus 
is  not  a  conversion  of  the  pledge,  and  a  pledgor  may  make  the  pledgee 
his  proxy.  103  Cal.  357  ;  3.0  Wis.  147.  One  duly  registered  as  "  pledgee  " 
of  stock  has  not  a  stockholder's  liability.  58  Fed.  (U.  S.)  666  ;  7  C  C.  A. 
422.  But  otherwise  in  a  colorable  transfer,  where  a  mere  pledgee  allows 
his  name  to  appear  on  the  book  as  full  owner.  Rankin  v.  Fidelity  Ins. 
Co.,  189  U.  S.  242.     And  see  131  U.  S.  317;  (1901)  2  Ch.  314. 


100  THE   LAW   OF   BAILMENTS 

in  damages  as  for  its  tortious  dispossession.^  None  can 
obstruct  his  prompt  pursuit  and  recovery,  under  such  circum- 
stances, save  the  party  who  can  show  a  better  title ;  and  any 
interest  derived  in  the  thing  through  a  wrong-doer,  however 
honestly  acquired  by  some  third  person,  and  handsomely  paid 
for,  must,  as  a  rule,  yield  to  the  pledgee's  right  of  precedence.^ 

183.  A  -waiver  or  subordination  of  the  pledgee's  lien  may 
occur  tln-ough  the  pledgee's  own  acts  or  conduct ;  though 
such  waiver  or  subordination  on  his  part  should  duly  appear 
in  evidence.^  But  a  constructive  waiver  or  subordination  is 
not  favored  from  merely  negative  acts  or  upon  a  misunder- 
standing.* 

184.  The  effect  of  the  pledgee's  overdealing  or  sub-pledge 
is  sometimes  considered  at  this  day,  with  a  judicial  disposi- 
tion, as  in  the  case  of  a  tortious  original  pledge,  to  regard  the 
equities  of  rival  claimants  and  work  out  the  whole  transac- 
tion as  beneficially  as  possible.  It  has  long  been  admitted 
that  a  pledgee  may  assign  over  the  pledge  so  that  the  as- 
signee shall  take  it  subject  to  all  the  responsibilities  under 
the  original  pledge  transaction ;  or  may  deliver  it  into  the 
hands  of  a  stranger  for  safe  custody;  or  may  assign  in  form  for 
his  own  purposes  of  enforcement ;  or  may  convey  his  interest 
conditionally  by  way  of  pledge  to  another  person ;  in  all  of 
which  cases  his  security  will   not  be  destroyed  or  impaired.^ 

1  §  217;  Tread  well  v.  Davis,  34  Cal.  601  ;  5  Binn.  (Penn.)  457;  Ayers 
V.  South  Australian  Banking  Co.,  L.  R.  3  P.  C.  548.  This  accords  with 
our  general  law  of  bailments. 

2  U.  S.  Express  Co.  v.  Meinto,  72  111.  293  ;  Adams  v.  O'Connor,  100 
Mass.  515 ;  Noles  v.  IVIarable,  50  Ala.  366.  As  to  the  measure  of  damages 
recoverable,  see  §  217;  100  Mass.  515;  34  Cal.  601  ;  13  111.  466;  4  Barb. 
(N.  Y.)  491;  18  C.  B    n.  s.  479. 

3  Treadwell  v.  Davis,  34  Cal.  601 ;  20  Pick.  (:\Iass.)  399.  The  right 
of  pledgee  to  the  pledge  is  subordinate  to  the  special  lien  of  one  whom  he 
employs  upon  it.  Cooley  v.  Minnesota  R.,  53  Minn.  327  (bailee  employed 
to  transport  and  store  the  goods  pledged).  Cf.  34  Cal.  601 ;  59  Fed. 
(U.  S.)  249. 

^  Gunsel  v.  McDonnell,  67  Iowa,  521 ;  Radigan  v.  Johnson,  176  Mass. 
433;  53  Minn.  327;  73  Tpy.  (]]•>■.  IS  Fed.  (U.  S.)  677. 

5  §218;  Whitney  v.  Peay,  24  Ark.  22 ;  Shelton  v.  French,  33  Conn. 
489;  101    Cal.   445^;  Belden   v.   Perkins,  78   III.    449;    Van   Blarcom  v. 


PLEDGE  OR  PAWN  101 

But  any  such  act  on  the  pledgee's  part  is  understood  to  be 
subject  to  all  the  original  restrictions;  for  to  attempt  to 
pledge  property  beyond  the  pledgee's  own  demand,  or  to 
make  transfer  as  though  he  were  the  absolute  owner,  is  re- 
garded as  a  breach  of  trust  and  a  fraud  upon  the  original 
pledgor;  so  that  the  pledgee's  creditors  can  in  general  acquire 
no  title  in  the  property  beyond  that  of  the  original  pledgee 
himself.^  Whether,  however,  the  pledgee's  transfer  in  breach 
of  trust  shall  so  impair  his  security  as  to  give  the  pledgor  a 
right  to  reclaim  the  chattel  on  other  or  better  terms  than  be- 
fore the  transfer,  and  regardless  of  what  he  owed,  is  quite  dif- 
ferent. Indeed,  the  later  equitable  rule,  frequently  asserted 
in  English  and  American  cases,  is  that  a  pledgee's  overdeal- 
ing  by  sale  or  sub-pledge  does  not  utterly  annihilate  the  pledge 
contract  nor  extinguish  the  pledgee's  interest  in  the  chattel 
thereunder;  but  simply  makes  the  transfer  so  far  inoperative 
against  the  pledgor  that  the  latter  may  recover  possession 
by  tendering  what  he  owes.^  And  even  the  pledgee,  when  sued 
for  his  wrongful  ti'ansfer,  may,  in  general,  recoup  the  secured 
debt  in  the  damages.^ 

Broadway  Bank,  37  N.  Y.  540 ;  Proctor  v.  Whitcorab,  137  Mass.  303.  And 
see  18  Blatch.  (U.  S.)  555;  9&  Mich.  121  (executor  of  deceased  pledgee). 

1  §  218. 

2  §  219;  Babcock  v.  Lawson,  4  Q.  B.  D.  3.94;  Johnson  v.  Stear,  15 
C.  B.  N.  s.  338  ;  Donald  r.  Suckling,  L.  li.  1  Q.  B.  585.  And  see  150-154, 
ante.  See  also  First  Nat.  Bank  v.  Boyce,  78  Ky.  42;  Belden  v.  Perkins, 
78  111.  449;  83  111.  10!);  74  N.  Y.  223;  Lewis  v.  Mott,  36  N.  Y.  395; 
Talty  V.  Freedman's  Savings  Co.,  93  U.  S.  321.  The  foregoing  rule  is 
mostly  applied  to  mercantile  chattels,  such  as  corn,  marketable  commodi- 
ties, and  securities  generally  which  are  easily  replaced  or  paid  for.  But 
as  to  certain  kinds  of  chattels  whose  intrinsic  qualities  were  presumably 
regarded,  such  as  a  valuable  work  of  art,  ornaments,  or  private  garments, 
a  transfer  to  strangers  at  the  mere  discretion  of  the  pledgee,  apart  from 
his  pledgor's  permission,  may  be  hindered  by  a  fair  construction  of  the 
mutual  intendment.  §§  218,  219;  L.  K.  1  Q.  B.  585,  615,  618  ;  83  Minn. 
203. 

'  Belden  v.  Perkins,  78  111.  499.  The  cases  have  usually  assumed 
that,  in  all  such  overdealing,  the  third  party,  whose  interest  was  pro- 
tected, acted  bona  fide  in  the  transaction,  and  was  not  charged  with 
previous  notice.     See  ante,  150-154.     As   to  a  sub-pledgee  not  bona  fide 


102  THE   LAW   OF   BAILMENTS 

185.  The  pledgor  has,  on  his  own  part,  a  right  to  sell  or 
assign  his  owii  interest  in  the  thing  pledged,  subject  to  the 
pledgee's  rights ;  in  which  case  the  transferee  will  stand 
in  his  place  with  the  right  of  redeeming  the  pledge  and  hold- 
ing the  pledgee  to  due  performance.^  So  may  the  pledgor 
pledge  and  then  mortgage  his  property,  making  a  junior 
incumbrance  upon  tlie  thing.^ 

186.  A  pawn  or  pledge  could  not  be  attached,  at  the  common 
law ;  but  local  statutes  permit  of  such  attachment,  subject  to 
the  pledgee's  prior  right  of  satisfaction  from  the  proceeds 
of  an  execution  sale.'^ 

187.  A  pledgor's  bankruptcy,  insolvency,  or  death  does  not 
affect  injuriously  his  pledgee's  lien,  apart  from  the  hitter's 
consent.  But  in  any  such  case,  the  pledgee  cannot  share  as 
a  general  creditor  in  his  pledgor's  estate  without  turning  his 
security  into  the  general  fund.'* 

188.  The  extent  of  the  pledgor's  right  to  sue  strangers  for 
wrongfully  taking  or  injuring  tlie  pledge  has  not  been  fully 
determined  ;  but  while  it  may  be  theoretically  true  that  either 
th-e  party  having  the  special  property,  or  the  general  owner, 
may  recover  full  damages    against  an  intermeddler,   courts 


but  chargeable  with  notice,  see  German   Bank  v.  Renshaw,  78  Md.  475. 
And  see  29  La.  An.  329;  Waddle  r.  Owen,  43  Keb.  489. 

See  further,  Shelton  v.  French,  33  Conn.  489  (no  conversion  by 
pledgee  where  he  is  prepared  to  restore  the  pledge  at  the  proper  time). 

1  §  220;  7  INIe.  28;  3  Fost.  (N.  H.)  38;  Van  Blarcom  v.  Broadway 
Bank,  37  N.  Y.  540  ;  (Neb.  1901)  88  N.  W.  175. 

2  13  B.  Monr.  (Ky.)  432;  Taylor  v.  Turner,  87  111.  296;  First  Nat. 
Bank  v.  Root,  107  Ind.  224. 

Where  the  original  pledgee  retains  possession  any  subsequent  trans- 
feree of  his  pledgor  must  respect  his  priority.  Carrington  v.  Ward,  71 
N.  Y.  360. 

3  §  221  ;  Coggs  V.  Bernard,  2  Ld.  Raym.  909  ;  Swire  v.  Leach,  18  C  B. 
N.  s.  479  (no  distraint  for  rent);  31  La.  An.  865;  120  Mo.  127  ;  1  Comst. 
(N.  Y.)  20;  95Penn.  St.  432. 

*  §  222;  Yeatman  v.  Savings  Institution,  95  U.  S.  764  (refusal  to  sur- 
render to  pledgor's  assignee  in  bankruptcy);  57  Fed.  (U.  S.)  821;  L.  R. 
3  Ex.  299  ;  Bennett  v.  Stoddard,  58  Iowa,  654  (death  of  pledgor)  ;  Bryan 
Shoe  Co.  ('.  Block,  52  Ark.  458  (turning  in  the  pledge  security). 


PLEDGE   OR   PAWN  103 

obviously  incline,  in  practice,  to  prefer  the  pledgee  ;  so  that 
at  all  events  the  pledgor,  whose  principal  debt  remains  un- 
paid, or  principal  engagement  unfulfilled,  may  not  oust  him 
of  his  security.^ 

189.  A  warranty  of  title  by  the  pledgor  is  given  to  the 
pledgee  by  the  act  of  pledging,  unless  previous  notice  is  given 
to  the  contrary,  that  tlie  pledgor  was  true  owner  or,  at  least, 
had  the  right  to  pledge ;  and  for  breach  of  such  engagement 
on  his  part,  the  pledgee  may  hold  him  liable  in  damages.^ 
A  pledgor  of  property  which  he  does  not  own  is  estopped 
from  setting  up  any  title  afterwards  acquired  during  the 
continuance  of  the  pledge.^  And  for  the  pledgor's  fraud, 
affecting  injuriously  his  pledgee's  interest  under  the  pledge 
contract,  the  latter  may  likewise  claim  indemnity.^ 

189  a.  Variation  by  special  contract  ■within  the  range  of 
public  policy  is  always  permissible  in  a  pledge  transaction,  as 
in  other  bailments.  Thus  the  mutual  stipulation  may  require 
that  the  pledge  be  kept,  until  default  of  the  pledgor,  in  some 
particular  place  or  by  some  particular  custodian  ;  or  tliat  the 
l)ledgee  shall  hold  possession  of  negotiable  collaterals  for  the 
bailor  to  collect,  and  nut  try  himself  to  collect  them ;  or  that 
no  assignment  of  the  pledge  shall  be  made  before  default 
without  the  pledgor's  assent.^  And  if  the  pledgee  expressly 
undertakes  absolutely  to  redeliver,  on  satisfaction  of  the 
pledgor's  debt,  either  the  pledge  or  its  money  equivalent,  his 

1  §  223.  Probably,  whichever  party  first  sued  the  aggressor,  the 
court  would,  on  application,  protect  the  interest  of  the  other  out  of  the 
damages  recovered ;  but,  unlike  other  bailees,  the  pledgee  has  often  an 
interest  in  the  thing  greater  than  his  bailor. 

2  §  224;  Mairs  v.  Taylor,  40  Penn.  St.  446. 

3  Goldstein  v.  Hort,  30  Cal.  372. 

*  Way  V.  Davidson,  12  Gray  (Mass.),  465;  White  r.  Piatt,  5  Denio 
(N.  Y.),  269.  See  Baker  v.  Arnot,  67  N.  Y.  448  (effect  of  pledgee's 
intervention). 

5  §  225 ;  St.  Losky  v.  Davidson,  6  Cal.  643 ;  Lee  v.  Baldwin,  10  Ga. 
208;  Lawrence  v.  McCalniont,  2  How.  (U.  S.)  426.  Various  special 
stipulations  may  be  introduced  {e.g.,  107  Ind.  224).  And  special  stipu- 
lations regarding  the  pledgee's  remedies  on  default  will  presently 
appear. 


104  THE  LAW  OF   BAILMENTS 

rash  promise  must  be  kept,  even  though  the  thing  perished  on 
his  hands  without  his  fault.^ 

190.  IV.  Bailment  in  Pledge  on  the  Pledgor's  Default,  or  up- 
on Fulfilment  of  the  Secured  Undertaking.  Let  us  now  suppose 
that  the  pledgor  has  failed  to  pay  the  secured  debt  on  maturity, 
or  that  he  otlierwise  defaults  in  performance  of  tlie  principal 
undertaking.  At  the  common  law  a  pledge  does  not,  in  such 
event,  become  the  absolute  property  of  the  pledgee ;  but  he 
may  avail  himself  of  the  security  for  his  own  satisfaction,  or 
sue  upon  the  main  engagement,  pursuing  both  modes,  or  either. 
Nor  is  mere  indulgence  or  forbearance  by  the  pledgee  a  waiver 
of  his  legal  rights  where  the  pledgor  remains  in  default, 

191.  As  for  proceeding  upon  his  security,  there  are  two  reme- 
dies open  to  his  election :  (1)  To  file  his  bill  in  chancery, 
and  obtain  a  judicial  sale  under  a  regular  decree  of  foreclos- 
ure.^ (2)  After  giving  reasonable  notice  of  his  intention  to 
the  pledgor,  to  sell  the  thing  publicly  and  fairly  (the  pledgor's 
default  continuing),  without  judicial  process  at  all.  This 
latter  summary  proceeding,  which,  though  jealously  watched 
by  the  courts,  is  commonly  preferred  as  altogether  the  more 
expeditious  and  inexpensive  method  of  gaining  satisfaction, 
deserves  examination  in  detail.^ 

192.  The  non-judicial  sale  must  be  upon  due  notice  and  de- 
mand, reasonably  clear  and  with  reasonable  details.^ 

1  Drake  v.  White,  117  Mass.  10. 

2  §  226.  This  tedious  and  expensive  process,  less  favored  now  than  in 
early  times,  is  chiefly  to  be  commended  where  the  pledged  property  is  of 
much  value  and  powerful  conflicting  elements  are  at  stake,  or  where  there 
are  many  claimants  and  a  doubtfnl  title  should  be  cleared  up.  See  Gilb. 
Eq.  104;  1  Ves.  278  ;  Harti).  Ten  Eyck,  2  Johns.  Ch.  (N.  Y.)  62, 100;  Boyn- 
ton  V.  Payrow,  67  Me.  587  ;  Chafee  v.  Sprague  Man.  Co.,  14  R.  I.  168. 
And  see  19o,  post,  as  to  peculiar  transactions. 

3  §§  227,  228;  cases  post.  The  pledgor's  interests  are  here  guarded  in 
two  main  particulars  :  (1)  he  has  a  final  opportunity  given  of  making  his 
principal  engagement  good,  and  so  preventing  a  sale;  (2)  the  sale,  when 
made,  is  so  conducted  as  to  bring  most  likely  all  the  thing  is  worth. 
And  the  most  scrupulous  good  faith  is  exacted  on  the  j^ledgee's  part. 

*  §  229.  However  informal  the  notice  (aside  from  a  formal  demand 
when  needful)  it  should  convey  the  idea  of  selling  at  a  certain  time  and 


PLEDGE   OR  PAWN  105 

193.  The  non-judicial  sale  should  be  fairly  and  openly  con- 
ducted, and  at  common  law  should  be  at  public  auction. ^ 

194.  But  possible  defects  of  sale  may  be  -waived  by  the 
pledgor  himself ,  as  where  his  own  subsequent  conduct  amounts 
to  a  ratification  ;  especially  if  the  result  has  not  been  injurious 
to  his  own  interests.^  Lapse  of  time  in  connection  with  cir- 
cumstances puts  a  bar  to  all  claims  which  may  tend  to  dis- 
turb a  title.^  And  even  assuming  a  sale  on  the  pledgee's 
part  to  be  wrongful,  before  or  after  a  default,  the  modern  ten- 
dency is  to  require  the  pledgor  at  all  events  to  make  good 
whatever  he  owes  under  the  pledge  contract,  as  a  prerequisite 
to  punishing,  for  the  wrong  itself,  either  the  pledgee  or  an 
improper  transferee  of  the  pledge.'* 

place,  not  unreasonably  fixed.  Gay  v.  Moss,  34  Cal.  125;  Stevens  ;;. 
Hurlbut  Bank,  31  Conn.  Ii6 ;  Cushman  v.  Hayes,  40  111.  145;  25  Minn. 
202 ;  Bryan  v.  Baldwin,  52  N.  Y.  233  ;  Conyngham's  Appeal,  57  Penn.  St. 
474;  3  Col.  551;  165  Mass.  467.  If  the  pledgor  give  actual  and  timely 
notice,  a  formal  notice  may  be  dispensed  with.  Alexandria  R.  v.  Burke, 
22  Gratt.  (Va.)  254.  As  to  newspaper  or  other  constructive  notice  in 
extreme  cases,  see  Potter  v.  Thompson,  10  R.  I.  1 ;  72  111.  428  ;  1  Holmes 
(U.  S.  Cir.),  180;  Stearns  v.  .Marsh,  4  Denio  (N.  Y.),  227.  And  see  as  to 
demand,  70  Mo.  290;  11  C.  B.  n.  s.  730;  Pigot  v.  Cubley,  15  C.  B.  n.  s. 
701;  72  111.  428;  87  Ala.  644.  Sale  without  notice  is  wrongful,  in  the 
absence  of  stipulation.     59  Neb.  124. 

1  §§  230,  231 ;  Strong  v.  Nat.  Banking  Assoc,  45  N.  Y.  718;  3  Col.  551; 
165  Mass.  467  ;  31  Conn.  146  (oppressive  or  underhand  sale  not  favored). 
A  sale  on  default,  and  after  due  notice,  which  has  been  fairly  and  openly 
conducted  cannot  be  afterwards  impeached  for  low  price,  bad  market, 
etc.  9  Wis.  818;  36  N.  Y.  395;  133  Mass.  482;  58  Tex.  669,  A  sale 
to  the  pledgee  by  collusion  with  a  sham  purchaser,  or  a  sale  otherwise 
colorable  and  irregular,  does  not  affect  the  pledgor's  right  as  against  any 
one  not  standing  upon  peculiar  equities,  unless  the  pledgor  chooses  to 
treat  the  sale  as  valid.  84  Me.  72 ;  Ogden  v.  Lathrop,  65  N.  Y.  158 ; 
4  Met.  (Mass.)  25;  14  Fed.  R.  (U.  S.)  801;  41  Minn.  146;  Glidden  v. 
Mechanics'  Bank,  53  Ohio  St.  588. 

2  §  232 ;  41  Cal.  519 ;  Hamilton  v.  State  Bank,  22  Iowa,  306 ;  20  La. 
An.  70;  Chouteau  v.  Allen,  70  Mo.  290. 

8  Earle  v.  Grant,  14  R.  I.  228;  116  Penn.  St.  573;  Downer  v.  Whittier, 
144  Mass.  448;  45  Fed.  (U.  S.)  712. 

*  §  231.  And  see  ante,  184.  There  can  be  no  damages  awarded  to 
the  pledgor,  except  for  the  possible  surplus  over  and  above  making 
good  that  which  the  pledge  was  meant  to  secure.     As  to  the  failure  and 


106  THE   LAW  OF   BAILMENTS 

195.  There  are  peculiar  remedies  for  enforcement  on  default, 
under  peculiar  kinds  of  pledge ;  since  each  mercantile  trans- 
action of  this  kind  should  go  by  its  own  reasonable  intend- 
ment.^ 

196.  As  regards  negotiable  securities  like  bills,  notes,  and 
coupon-bonds,  two  pledge  peculiarities  are  noticeable :  (1) 
Availability  of  title  to  a  bona  fide  holder  for  value,  when  not 
overdue,  even  though  lost,  stolen,  or  otherwise  put  out  of 
the  original  owner's  control,  without  his  fault  or  knowledge.^ 
(2)  Application,  in  many  instances,  to  a  pledgee's  satisfaction 
agreeably  to  the  understood  mutual  intent,  without  any  sale 
of  the  pledge  whatever.  On  this  latter  point  the  rule  dedu- 
cible  from  a  number  of  late  decisions  is,  that  the  pledgee  of 
negotiable  securities  not  only  has  the  right,  but  is  bound,  in 
the  exercise  of  ordinary  diligence,  to  make  presentment  for 
collection  on  their  maturity,  and  then  apply  the  proceeds  on 
the  pledge  account;  and  if  loss  arises  from  a  failure  to  do  so 
upon   reasonable    knowledge    and   opportunity,   the   pledgee 

utter  dissolution  of  a  pledging  company  in  affecting  the  formalities  of  a 
sale,  see  1  Holmes  (U.  S.),  180.  As  to  waiver  of  the  tort  and  requiring 
the  money  from  the  sale  to  be  duly  applied,  see  78  Ale.  465.  If  the 
pledgee  sells  in  good  faith,  and  with  due  care  and  diligence,  damages  for 
irregular  sale  are  not  favored  where  no  actual  damage  is  shown.  175 
Mass.  305.     See  further,  175  Mass.  320. 

1  §  233.  As  to  sales  on  a  broker's  "  margin  "  and  whether  the  strict 
relation  of  pledgor  and  pledgee  here  applies,  in  the  formalities  requi- 
site, cf.  41  N.  y.  235;  McNeil  v.  Tenth  Nat.  Bank,  46  N.  Y.  325;  130 
N.  Y.  615;  25  Md.  242.  269 ;  41  Cal.  519  ;  Comm.  v.  Cooper,  130  Mass. 
285;  105  Fed.  (U   S.)  493. 

As  to  sales  of  pledged  stock,  see  §  234  and  cases  cited. 

Mortgage  bonds  or  notes  taken  in  pledge  may  require  or  permit  of  an 
enforcement  of  their  special  security.  §235;  30  La.  An.  1000;  77 
N.  Y.  S.  252;  174  N.  Y.  514;  12  Bush^Ky.),  673;  121  Fed.(U.  S.)  §  192; 
7  Allen  (Mass.),  23  ;  67  Miss.  770.  A  deposit  of  title  deeds  as  collateral 
security  does  not  create  such  a  lien  on  the  land  as  can  be  foreclosed  at 
law ;  but  a  bill  in  equity  will  lie  to  subject  the  land  to  the  security. 
English  V.  McElroy,  62  Ga.  413;  20  Fed.  (U.  S.)  65.  Cf.  Carters.  Wake, 
4  Ch.  D.  605  (otlierwise  as  to  railway  mortgage  bonds,  etc.);  115  Ga.  53. 
See  further,  196,  197. 

2  §  236. 


PLEDGE  OR  PAWN  107 

must  bear  that  loss.^  And  it  has  even  been  held  wrongful  for 
one  to  sell  a  negotiable  note  pledged  to  him,  instead  of  col- 
lecting it;  notwithstanding  a  contrary  usage  among  brokers.^ 
But  this  rule  of  collection  applies  mainly  to  short-time  paper, 
or  that  which  matures  before  or  contemporaneous  with  the 
principal  obligation ;  nor  is  the  reasonable  intendment  of  any 
pledge  transaction  to  be  here  disregarded.^ 

197.  Enforcement  of  debts,  claims,  and  demands  held  as 
security  regards  likewise  the  apparent  and  reasonable  intend- 
ment of  the  parties.* 

1  Reeves  v.  Plough,  41  Tnd.  204;  City  Sav.  Bank  v.  Hopson,  53 
Conn.  453;  Wheeler  v.  Xewbould,  16  X.  Y.  392;  IS  IMinn.  2-32  ;  71  Iowa, 
671 ;  Lazier  v.  Nevin,  3  W.  Va.  622. 

2  Markhain  v.  Jauclon,  41  N.  Y.  235.  The  debtor  on  the  note  must 
regard  the  pledgee's  rights,  and  whatever  the  pledgee  may  thus  collect, 
be  it  in  whole  or  in  part,  goes  to  the  account  of  the  pledge,  the  surplus, 
if  any,  going  to  the  pledgor.  Houser  v.  Houser,  43  Ga.  415;  Kice  v. 
Benedict,  19  Mich.  132;  34  Mich.  92,  279;  Hancock  v.  Franklin 
Ins.  Co.,  114  Mass.  155.  See  further,  Benoir  v.  Paquin,  40  Vt.  1.99;  98 
Mass.  303;  90  N.  Y.  483.  While  the  pledgee  may  sue  and  collect  he 
cannot  compromise  on  his  sole  responsibility,  nor  make  a  careless  or  faith- 
less settlement  against  his  pledgor's  interest ;  yet  ordinary  care  and 
diligence,  with  good  faith,  is  the  general  standard  to  be  applied.  98  111. 
613 ;  Union  Trust  Co.  v.  Rigdon,  93  111.  458 ;  92  111.  App.  95  ;  113  Ga. 
242;  9  Lea  (Tenn.),  63.  And  in  the  renewal  of  notes  and  demands,  and 
on  doubtful  points  generally,  the  pledgee  ought  if  possible  to  consult 
the  pledgor.     165  ^Nlass.  402  ;  Girard  Fire  Ins.  Co.  v.  Marr,  46  Penn.  St.  504. 

2  §§  237,  238.  Presumably  the  rule  of  collection  instead  of  sale  is 
limited  thus :  for  where  the  paper  taken  in  security  has  a  long  time  to 
run,  and  may  be  sold  meanwhile  in  market,  the  presumption  is  rather  in 
favor  of  sale  upon  default,  if  the  pledgee  so  elects.  See  1  Beasl.  (N.  J.) 
323  ;  Water  Power  Co.  v.  Brown,  23  Kan.  676  ;  8  Me.  383  ;  114  Mass.  155; 
Union  Cattle  Co.  v.  Trust  Co.,  149  Mass.  492  ;  8  Me.  383;  36  Wis.  85. 

In  any  case  the  pledgee's  liability  for  remissness  should  be  limited  to 
the  actual  damage  sustained  by  his  pledgor.  71  Iowa,  071.  Authority  to 
sell  short-time  paper  whose  presentment  is  dishonored  has  sometimes 
been  conceded;  though  in  any  sale  of  negotiable  paper  taken  in  security 
the  usual  formalities  should  apply  for  the  pledgor's  due  protection. 
10  R.  I.  1,  8.  10 ;  Goldsmidt  c.  Church  Trustees,  25  Minn.  202. 

*  §  239.  Overdue  claims  and  debts  are  usually  taken  in  security  upon 
the  understanding  that  the  pledgee  shall  try  to  collect  and  apply,  to  the 
extent  at  least  of  dunning  the  claimants,  without  awaiting  his  pledgor's 


108  THE   LAW   OF   BAILMENTS 

198.  In  fine,  every  security  should  be  enforced  according  to 
its  nature  and  the  mutual  intent,  wherever  enforcement  becomes 
necessary,  since  the  pledge  contract  implies  that  the  thing 
shall  be  put  reasonably  and  fairly,  though  not  fraudulently  or 
oppressively,  towards  discharging  the  pledge  obligation.  In- 
crements of  the  pledge  retained  by  the  pledgee  may  be  sold 
on  default,  as  well  as  the  original  pledge  itself ;  and  in  the 
conduct  of  a  sale  once  undertaken  upon  the  pledgor's  default, 
as  well  as  in  collecting  the  security,  good  faith  and  ordinary 
diligence  should  be  exercised.^ 

199.  The  usual  rules  of  priority  should  be  observed,  in 
adjusting  the  rights  of  various  lien-creditors  to  the  fund 
derived  from  the  sale  of  a  pledge  on  default,  or  its  due  reduc- 
tion to  cash ;  though  such  docti'ines,  in  the  present  connection, 
receive  but  slight  attention  from  our  courts.^  The  law  as  to 
a  creditor  leaves  the  appropriation  of  payments  largely  to  his 
own  choice  ;  and  where  the  pledge  was  given  to  secure  various 
obligations,  the  pledgee  ma}^  'T'Pply  the  proceeds  of  his  security 
in  tlie  manner  most  convenient  to  himself,  unless  expressly 
restrained  ;  though  only,  of  course,  to  such  debts  as  the  pledge 
was  meant  to  secure.^ 

default.  See  Rice  v.  Benedict,  19  Mich.  1.32 ;  Kitteraj^  Estate,  17  Penn. 
St.  146.  See  further,  Boyiiton  v.  Payrow,  67  Me.  587  (savings'  bank 
book  security)  ;  Merchants  Bank  v.  Thompson,  133  Mass.  482  (stock  of  a 
land  company,  etc.);  37  Neb.  766  (warehouse  receipts)  ;  16  W.  Va.  717 
(city  scrip  or  orders)  ;  Fairbanks  v.  Sargent,  117  N.  Y.  320  (fractional 
part  of  a  claim). 

1  §240;  66  Cal.  480;  Colquitt  v.  Stultz,  65  Ga.  305;  McQueen's 
Appeal,  104  Penn.    St.    595. 

2  §  241;  12  Bush  (Ky.),  673.  If  the  proceeds  be  insufficient  for  dis- 
charging the  secured  indebtedness  and  indemnifying  the  pledgee,  the 
deficit  should  constitute  a  personal  charge  against  the  pledgor,  recoverable 
against  him.  72  111.  428;  104  Mass.  188.  But  if,  on  the  other  hand,  the 
pledgee  obtain  entii'e  satisfaction,  and  there  should  remain  a  surplus, 
this  belongs  to  the  pledgor,  or  to  subsequent  lien-holders  in  his  right,  and 
the  pledgee  must  account  accordingly.  Rohrle  i'.  Stidger,  50  Cal.  207; 
37  N.  Y.  540;  114  Mass.  155;  126  Mass.  209;  14  Wis.  331  ;  Fletcher  y. 
Harmon,  78  i\Ie.  465;  Union  Bank  i\  Roberts,  45  Wis.  373. 

3  §241;  Wilcox  v.  Fairhaven  Bank,  7  Allen  (Mass.),  270  (though 
some   notes  have   solvent  iudorsers    and  others   have  not).     Naturally, 


PLEDGE   OR  PAWN  109 

200.  So,  too,  •where  several  securities  -were  taken  for  the 
same  principal  undertaking,  eacii,  by  both  the  civil  and  the 
common  law,  will  be  deemed  liable  for  the  whole  debt  or 
engagement,  and  the  pledgee  has  much  freedom  of  choice 
among  them.^  But  though  there  may  be  many  securities, 
the  pledgee  can  obtain,  on  his  pledgor's  default,  but  one 
satisfaction.^ 

201.  The  rules  of  subrogation  and  contribution  apply,  under 
equity  guidance,  whenever  justice  so  requires  ;  as  where  some 
third  party  who  is  bound  under  the  security,  such  as  a  surety 
or  indorser,  discharges  the  pledge  obligation,  or  where  contri- 
bution is  justly  due  from  the  other  securities,  one  security 
alone  having  been  enforced  by  the  pledgee.^ 

202.  But  a  pledgee,  we  now  observe,  is  not  in  general  bound 
to  sell  on  his  j^ledgor's  default ;  while,  on  the  other  hand,  the 
pledge  will  not  become  his  absolute  property  where  he  fails 
to  do  so.  His  omission  to  enforce  his  right  under  the  secu- 
rity simpl}^  leaves  the  thing  a  mere  pledge  as  before ;  and 
under  these  circumstances  the  pledgee  will  remain  bound  to 
restore  it  to  the  pledgor  whenever  full  payment  or  satisfaction 
of  the  secured  undertaking  has  been  made  or  tendered  him, 
subject,  of  course,  to  the  doctrine  of  limitations.*  But  since 
he  is  not  bound  to  sell,  neither  will  he  be  held  liable,  while 
Jiis  pledgor  remains  inert,  for  the  mere  depreciation  of  the 

h6wever,  the  proceeds  of  a  sale,  when  not  sufficient  to  liquidate  two  or 
more  debts,  are  applied  proportionally,  if  the  pledgee's  interests  so  permit. 
2  Ind.  488;  10  Pick.  (Mass.)  129.  And  see  10  Md.  373;  153  Mass.  415 
(specific  or  general  indebtedness);  6  Vt.  536. 

1  §242;  Buchanan  v.  International  Bank,  78  111.  500;  23  ]Me.  202; 
37  X.  J.  L.  307;  Held  v.  Vreeland,  30  X.  J.  Eq.  591.  And  see  152  i^Iass. 
189  (ordinary  paper  for  security  to  be  used  before  accommodation  paper); 
199  Penn.  St.  17. 

^  Hence  excessive  sales  ought  not  to  be  enforced  where  the  securities 
are  separa1)le.  32  Ark.  742  ;  88  111.  275 ;  New  England  Trust  Co.  v.  Belting 
Co.,  1G6  :\Iass.  42;  78  ]\Ie.  465;  45  Wis.  373. 

3  §  243  ;  11  Conn.  112;  7  Allen  (Mass.),  270,272;  New  England  Trust 
Co.  V.  Belting  Co.,  166  Mass.  42;  18  Ind.  71;  Brick  v.  Freehold  &  Co., 
37  N.  J.  L.  307  ;  162  Penn.  St.  501. 

*  §  244.    See  post  as  to  pledgor's  right  of  redemption. 


110  THE   LAW   OF   BAILMENTS 

unsold  pledge  on  his  liands.^  In  other  words,  it  is  usually 
the  pledgor  himself  who  should  keep  on  the  alert  and  take 
the  initiative,  in  order  to  get  what  he  deems  the  most  advanta- 
geous disposal  of  what  he  has  given  in  pledge,  indemnifying 
tlie  pledgee  against  new  expenses  which  might  otherwise 
burden  him,  or  seeking  the  court's  aid  to  enforce  his  own 
desires.^  And  this  brings  us  to  the  pledgee's  remaining 
remedy  on  his  pledgor's  default. 

203.  The  pledgee  may  sue  the  pledgor  personally,  like  any 
other  creditor,  upon  the  pledgor's  default,  without  resorting 
to  the  security  at  all,^  and  he  may  even  attach  the  pledged 
property  in  his  suit,  as  in  ordinary  actions.*  Recovery  of 
judgment  in  his  suit,  whether  upon  the  security  or  the  prin- 
cipal debt,  does  not  discharge  the  pledge  ;  for  actual  satisfac- 
tion is  what  the  law  seeks  ultimately  on  a  pledgee's  behalf.^ 

1  This  rule  is  frequently  asserted  of  stock  and  the  like  chattels  of 
fluctuating  market  values  but  long  existence.  See  §  244  and  numerous 
cases  :  6:}  Me.  205;  48  111.  Uo  ;  11  Iowa,  410  ;  37  Penn.  St.  402  ;  34  Vt.  89. 

'^  §245;  114  Mass.  155;  165  Mass.  467.  One  should  not  be  inert 
as  pledgee  where  debts  and  claims,  already  overdue,  are  taken  in  security, 
and  limitation  statutes  to  a  suit  aie  running.  Yet  his  active  initiation 
need  not  go  far  on  matters  of  collection  ;  and  ordinary  care  and  dili- 
gence is  enough.  Where  stock  is  held  in  security,  the  pledgee  is  not 
bound  to  sell  on  default,  without  at  least  notice  from  the  pledgor  or  facts 
indicating  a  necessity  ;  and  in  some  cases  the  pledgor  must  resort  to  the 
court  to  compel  a  sale.  See  65  Ga.  305;  68  Ga.  637;  Newsoin  v.  Davis, 
133  Mass.  343:  O'Neill  v.  Whigham,  87  Penn.  St.  394.  Though,  if  the 
pledgee  should  undertake  to  sell  or  enforce  his  security,  ordinary  care 
and  diligence  should  be  exercised,  and  good  faith  under  all  circumstances. 
68  Ga.  637;  42  Minn.  210  ;  104  Penn.  St.  595.  In  short,  without  a  special 
undertaking  on  his  own  part,  the  pledgee  is  not  bound  to  sell  even  when 
the  pledgor  requests  him  to  do  so,  except  for  the  limit  of  ordinary  care 
applicable  to  the  condition  and  character  of  the  property,  which  might 
involve  him  in  culpable  negligence  if  he  disregarded  a  notice  ;  for  his 
power  of  sale  is  a  right  rather  than  a  duty. 

^  §  246.  The  mere  taking  of  security  imports  no  promise  to  pursue  the 
security  first.     15  Wend.  (N.  Y.)  218;  34  Vt.  89. 

*  Arendale  v.  Morgan,  5  Sneed  (Tenn.),  703;  69  Ark.  271;  68  Towa, 
460  (the  lien  of  the  pledge  is  thereby  abandoned).  This  is,  however,  a 
naatter  of  local  practice. 

^  §  248.    Pledgee   may  continue  to  hold  the  security  and  treat  his 


PLEDGE   OR  PAWN  111 

204.  The  pledgee's  -vyhole  or  partial  relinquishment  of  security 

which  he  holds  does  not  in  otlier  respects  impair  his  right  to 
realize  otherwise  upon  the  secured  demand;  and  it  is,  more- 
over, a  general  principle,  wliich  our  bankrupt  and  insolvent 
laws  recognize,  that  tlie  just  balance  due  a  pledgee  over  and 
above  his  securities  may  be  judicially  pursued  like  the  claim 
of  an  ordinary  creditor.^ 

205.  Local  statute  or  special  contract  regulates  to  a  con- 
siderable degree  this  whole  subject  of  remedies  on  the 
pledgor's  default.  As  to  local  legislation  (aside  from  regu- 
lating the  petty  business  of  pawnbrokers)  various  provisions 
are  found  of  local  importance.^  And  with  respect  to  special 
contract  of  the  parties  themselves,  there  is  ample  scope  per- 
mitted of  which  capitalists  in  their  vast  transactions  are  not 
slow  to  take  advantage.^  Not  only  by  special  contract  before 
default,  but  by  ratification  or  mutual  assent  after  a  default 

judgment  as  additional  or  cumulative  securitj".  Smith  v.  Strout,  63  Me. 
205;  Fisher  c.  Fisher,  98  Mass.  303;  Charles  v.  Coker,  2  S.  C.  122.  See 
30  Kan.  386  ;  .51  Yt.  378. 

1  §247;  2  W.  &  S.  (Penn.)  463;  104  Mass.  188.  Wherever  suit  is 
brought  on  the  principal  demand,  the  pledgee  should  be  prepared  to  re- 
store the  pledge  on  satisfaction,  or  duly  account  for  non-production ;  and 
counter-claim  is  allowed  the  pledgor  in  this  respect.  98  Penn.  St.  SO  ;  78 
X.  Y.  454  ;  95  Ga.  731;  49  N.  J.  L.  48. 

2  §  248  ;  62  C:al.  426 ;  6  Minn.  550. 

^  §  248.  hi  the  vast  volume  of  large  mercantile  loans  at  this  day  by 
chartered  companies  on  the  pledge  of  marketable  securities,  special 
advantages  are  commonly  stipulated  by  contract  with  the  pledgor,  as 
expressed  in  his  note  or  otherwise.  Thus,  the  power  to  sell  has  been 
expressly  conferred,  the  time  and  manner  of  such  sale  fixed,  and  even  the 
right  conferred  on  the  pledgee  to  sell  upon  default  with  newspaper  notice, 
or  without  any  notice,  or  optionally  at  private  sale,  or  with  clear  per- 
mission to  be  himself  a  purchaser,  lb.;  50  Cal.  207;  11  Iowa,  410;  SO 
Iowa,  638;  124  111.  491  ;  133  N.  Y.  660  ;  107  La.  An.  236;  12  Wis.  413; 
70  Mo.  290;  139  N.  Y.  660;  79  Md.  41;  52  Kan.  195;  162  Mass.  527 
(agreement  with  third  pei'son  as  to  a  contingent  default).  See  also 
128  111.  533;  95  Ga.  731. 

Special  contract  is  seen  also  to  give  the  pledgee  a  special  right  to 
apply  the  surplus  of  a  sale  to  more  than  the  specific  indebtedness. 
Hallowell  v.  Blackstone  Bank,  154  Mass.  359  ("drag-net"  stipulation); 
Cross  V.  Brown,  17  R.  I.  568. 


112  THE   LAW   OF   BAILMENTS 

or    even   a   sale,  the    usual   bailment   terms   may  be    found 
modified.^ 

206.  Yet  oppressive  stipulations  violate  public  policy,  and 
public  policy,  as  we  have  seen,  places  a  limit  to  special  stipu- 
lations in  bailments  of  every  kind,^  All  bailment  stipula- 
tions, in  fact,  are  to  be  tested  by  sound  policy  and  good 
sense ;  and  the  same  holds  true  of  mercantile  customs  which 
are  claimed  to  modify  or  control  such  transactions.'^ 

207.  Now,  as  concerns  the  pledgor's  right  of  redemption. 
Where  the  pledge  has  once  been  disposed  of  on  the  pledgor's 
default,  either  under  some  decree  in  chancery  or  by  a  non- 
judicial sale  regularly  conducted,  the  same  being  in  full  com- 
pliance with  law  and  the  just  and  rational  contract  of  the 
parties,  the  pledgor's  right  of  redemption  is  utterly  gone.  So 
is  it  in  the  case  of  pledged  incorporeals,  such  as  negotiable 
paper  or  money  claims,  which  the  pledgee  has  rightfully  col- 
lected. But  otherwise,  —  as  if  the  pledgee  refrain  from  sell- 
ing or  collecting,  or  sell  irregularly,  or  buy  in  the  thing  for 
himself  where  he  has  no  special  permission  to  do  so,  or  make 
a  wrongful  transfer  of  it  to  some  third  party  whom  the 
pledgor  is  not  legally  debarred  from  pursuing,  —  the  pledgor's 
right  of  redemption  will  continue,  notwithstanding  his  own 
delinquency.  And  so  greatly  are  the  equities  of  all  pledge 
transactions  now  regarded,  that  courts  look  through  the  form 
to  the  substance  of  a  transaction  for  determining  whether  a 
pledgor  is  debarred  or  not.* 

208.  The  just  period  of  limitations  should  be  considered  in 
this  connection.  It  is  said  that  Avhere  no  time  was  limited  for 
redemption  of  the  pledge,  the  pledgor  has  his  own  lifetime  to 

1  See  ante,  194. 

2  §  249. 

8  Provision  void  that  on  default  the  pleds^ee  shall  hold  absolutely  as 
his  own.  3  Tex.  119;  Dorrill  v.  Eaton,  3.5  Mich.  302  (thus  giving  the 
effect  of  a  chattel  mortgage  at  common  law).  The  pledgor's  rights  are 
not  to  be  sacrificed  upon  vague  and  doubtful  forms  of  expression.  25 
Minn.  202.  Nor  for  that  matter,  are  a  pledgee's  just  rights.  78  111.  449. 
Nor  can  pledgee  and  pledgor  by  their  accord  obstruct  the  just  rights  of 
a  true  owner  where  the  pledge  was  wrongful.     141  N.  Y.  315. 

^  S  250. 


PLEDGE   OR  PAWN  113 

redeem,  unless  quickened  by  a  notice  in  pais,  or  through  the 
intervention  of  a  court  of  equity  ;  consistently  with  which 
rule  the  pledgee's  death  would  afford  him  no  hindrance.  But 
modern  prescription  runs  rather  by  lapse  of  years  than  the 
uncertain  span  of  a  human  life  ;  and  while,  supposing  the 
lapse  of  no  unreasonable  period  from  the  pledgor's  default, 
nor  a  waiver  of  redemption,  the  right  to  redeem  may  pass  to 
the  representatives  of  a  deceased  pledgor,  time  puts  an  ab- 
solute barrier  to  the  pursuit  of  all  such  remedies,  irrespective 
of  the  living  or  dead.^  A  pledgor,  moreover,  may  waive,  in 
effect,  his  right  of  redemption,  by  his  acts  or  consent  after  a 
default ;  though  his  right  to  any  balance  over  and  above  what 
the  pledge  may  realize  in  satisfaction  of  the  secured  undertaking 
is  always  favored.^ 

1  §  250.  See  60  Fed.  (U.  S.)  690,  (redemption  by  the  representatives 
of  a  pledgor,  who  died  soon  after  the  pledge  was  made) ;  Chambers  v. 
Kunzman,  45  A.  599  (N.  J.  Ch.). 

Strictly  speaking,  the  Statute  of  Limitations  does  not  run  against  a 
pledge ;  but,  inasmuch  as  it  runs  against  the  pledgee's  enforcement  of  the 
secured  debt  or  engagement,  so  will  equity  decline  to  entertain  the 
pledgor's  bill  for  redemption  if  he  or  his  representatives  bring  it  un- 
reasonably late ;  for  the  property  will  then  be  conclusively  presumed  to 
have  vested  in  the  pledgee,  or,  at  least,  to  have  been  duly  disposed  of.  See 
26  Ohio  St.  131  (six  years)  ;  White  Mountains  R.  v.  Bay  State  Iron  Co., 
50  N.  H.  57  (fifteen  years)  ;  Hancock  v.  Franklin  Ins.  Co.,  11-4  Mass.  155. 
But  of.  31  Penn.  St.  161 ;  103  N.  Y.  680 ;  58  Miss.  261.  Local  statute  may 
designate  the  limit  ;  but  otherwise  it  is  largely  a  matter  of  judicial  dis- 
cretion, dependent  on  the  circumstances,  when  more  than  six  years  have 
elapsed.  Equity  regards  with  greater  favor  a  bill  to' compel  the  account 
of  a  certain  surplus,  after  a  long  lapse  of  time,  than  a  bill  to  practically 
make  profit  by  some  late  rise  in  the  market  value  of  securities  which 
the  pledgor  had  presumably  sacrificed  on  his  default.  See  114  Mass. 
155;  SON.  H.  57. 

The  pledge  having  been  made  and  possession  kept,  the  pledgor  cannot, 
though  limitation  has  run  against  the  debt,  recover  possession  in  any 
event  without  payment  or  tender  of  the  debt.  And  it  is  to  be  borne  in 
mind  that  the  pledgee,  even  upon  the  theory  of  a  bailment  through  the 
whole  intervening  period,  might  not  be  actually  chargeable  if  the  thing 
were  lost.  See  Roots  v.  Mason  Co. ,  27  ^V^.  Va.  483 ;  Hudson  v.  Wilkinson, 
61  Tex.  606. 

2  §  251 ;  Fletcher  v.  Harmon,  78  Me.  465 ;  114  Mass.  155 ;  Loew  v. 
Austin,  140  Penn.  St.  41 ;  52  N.  J.  Eq  400. 


114  THE  LAW  OF  BAILMENTS 

209.  The  pledgor's  general  right  to  the  pledge  on  fulfilment  of 
the  secured  undertaking  is  liberally  recognized  at  our  law. 
For  the  rule  is,  that  a  pledge  ceases  to  be  operative  when  its 
object  is  effected  (the  pledgor  not  having  debarred  himself 
already  from  redemption)  and  the  whole  beneficial  interest 
in  the  security  given  vests  then  absolutely  in  the  equitable 
owner,  whether  the  secured  enjoyment  was  fulfilled  on  his  part 
voluntarily  or  by  compulsion. ^ 

210.  Hence,  a  tender  of  whatever  is  due  under  the  pledge, 
made  rightfully  and  seasonably,  although  after  maturity  of  the 
engagement,  will  put  an  end  to  the  pledge  relation,  and  ren- 
der the  pledgee's  longer  detention  of  the  thing  inexcusable, 
and  his  refusal  or  unreasonable  delay  to  produce  and  give  it  up 
on  demand  is  tantamount  to  conversion,  unless  he  can  exon- 
erate himself  for  its  loss  or  injury.^  And  as  a  pledgee  by  his 
unreasonable  delay  or  refusal  transcends  his  bailment,  he  thus 
becomes  liable  absolutely  for  all  subsequent  loss  or  depreciation 
of  the  pledge  while  in  his  custody.^ 

1  §  252;  Ward  v.  Ward,  37  Mich.  253;  34  Mich.  4;  131  Mass.  14; 
Stuart  V.  Bigler,  98  Penn.  St.  80. 

2  §  253  ;  Lawrence  v.  Maxwell,  53  N.  Y.  19  ;  McCalla  v.  Clark,  55 
Ga.  53;  41  Minn.  146;  Mayo  v.  Avery,  18  Cal.  309;  17  Fed.  (U.  S.) 
776.  The  pledgee's  sale  or  retention  for  non-compliance  with  conditions 
which  he  had  no  right  to  superadd,  or  after  the  pledgor  has  made  tender 
or  satisfaction  of  all  that  was  rightfully  due  under  the  pledge  contract,  is 
certainly  tortious.  Pigot  v.  Cubley,  15  C.  B.  n.  s.  702;  1  Hun  (N.  Y.), 
317. 

*  Loughborough  v.  McNevin,  74  Cal.  250. 

Considering  the  disadvantage  of  a  pledgor,  while  his  pledgee  baffles 
him  in  a  re-delivery  to  gain  something  further  for  himself,  the  courts  are 
sedulous  on  his  behalf  against  wrong  or  oppression.  He  need  not,  after 
his  tender  has  been  made  and  refused,  keep  his  tender  good  nor  bring 
the  money  into  court;  any  informality  on  his  part  as  to  a  bonajide  tender 
is  taken  favorably  for  his  rights,  if  the  pledgee  did  not  raise  the  point  of 
objection  at  the  time.  See  Wyckoff  v.  Anthony,  90  N.  Y.  442  ;  lUO  N.  Y. 
248;  91  N.  Y.  531;  74  Cal.  2-50;  17  Fed.  (U.  S.)  776.  Delay  by  the 
pledgee  with  apparent  intent  to  evade  his  legal  duty  is  taken  against  him. 
104  Mass.  259.  And  unreasonable  non-compliance  with  the  pledgor's 
sufficient  tender  is  available  not  only  to  the  pledgor,  but  to  those  acquir- 
ing rights  under  his  title.  41  Minn.  146.  But  a  bare  offer  to  redeem  on 
the  pledgor's  part  is  not  sufficient ;  nor  is  any  pai'tial  tender ;  nor  is  the 


PLEDGE   OR  PAWN  115 

211.  The  pledgor  may  seek  repossession  or  damages.  Upon 
full  satisfaction  of  the  secured  indebtedness,  or  the  tender 
thereof,  besides  a  demand  for  the  pledge,  followed  by  the 
pledgee's  refusal  without  good  reason  to  redeliver,  the  pledgor 
may  sue  for  the  thing  pledged  in  trover,  or  perhaps  replevin. 
And,  if  he  once  gets  repossession  of  the  thing  under  such 
circumstances,  he  has  good  cause  for  maintaining  it.^  The 
damages  recoverable  in  trover  are  such  as  will  make  the 
pledgor  whole ;  or,  in  general,  the  value  of  the  pledge  less 
what  may  prove  due  from  him  to  the  pledgee  under  the 
bailment.^ 

212.  In  all  such  cases  the  obligations  of  pledgor  and  pledgee 
are  mutual,  concurrent,  and  reciprocal ;  either  pai-ty  is  entitled 
to  performance  as  a  condition  of  his  own  performance.  And 
the  refusal  of  either  to  perform,  where  performance  is  ten- 
dered by  the  other,  furnishes  good  ground  for  action,  while  at 

pleds^or  favored  in  any  effort  to  obtain  redress  short  of  discharging  all 
that  he  owed  under  the  security.  10  R.  I.  1 ;  154  Mass.  o59  ;  17  Penn. 
St.  il6  ;  Hinckley  v.  Pfister,  88  Wis.  64.  And  a  reasonable  opportunity 
to  produce  the  pledge  or  to  consider  and  consult  as  to  his  own  duty,  ought 
to  be  allowed  a  pledgee,  especially  where  the  pledgor  has  been  in  default, 
before  wrong  can  be  imputed  to  him.  See  0  Wend.  (X.  Y.)  22  ;  McCalla 
V.  Clark,  .3.5  Ga.  53  ;  Dewart  i\  Masser,  40  Penn.  St.  302. 

1  §  254  ;  Geron  c.  Geron,  15  Ala.  558;  M'Lean  v.  Walker,  10  Johns. 
(N.  Y.)  471;  Fisher  v.  Brown,  104  ]\Iass.  259.  Demand  and  tender  are 
sometimes  dispensed  with  or  lightly  regarded  as  a  useless  formality  under 
the  circumstances.  See  4  Denio  {N.  Y.).  227;  3  Tex.  119.  But  cf. 
preceding  note;  Auld  r.  Butcher,  22  Kan.  400;  142  Mass.  342.  The 
pledgees  counterclaim  of  his  own  demand  when  thus  sued  is  favor- 
ably regarded.  Donald  v.  Suckling,  L.  R.  1  Q.  B.  585 ;  L.  R.  3  Ex. 
276;  Talty  v.  Freedman's  Savings  Co..  93  U.  S.  321;  31  Conn.  .339;  37 
N.  Y.  540  ;  78  111.  449;  39  Penn.  St.  243.  Cf.  45  N.  Y.  718  (transfer  of 
claim). 

2  §  254;  L.  R.  6  Eq.  165;  29  Cal.  142  ;  46  111.  145;  141  N.  Y.  315 
(damages  discouraged  where  no  real  loss  was  suffered)  ;  113  Mass.  548; 
114  Mass.  155  ;  57  Penn.  St.  474  ;  49  Vt.  474.  The  pledgor  may  elect  to 
abide  by  the  sale  or  collection,  and  sue,  as  for  muuey  had  and  received,  to 
obtain  the  rightful  surplus  due  him.  §260;  36  Ala.  666;  4  Denio 
(X.  Y.),  227  ;  114  Mass.  155;  126  Mass.  516;  45  Wis.  373.  And  see  51 
Vt.  378  (surplus  recovered  by  way  of  set-off  when  pledgor  is  sued). 


116  THE   LAW   OF  BAILMENTS 

the  same  time  neither  can  safely  stand  upon  a  mere  willing- 
ness as  the  standard  of  his  rights.^ 

213.  No  pledgee  can  claim  to  retain  the  pledge  in  order  to 
secure  new  debts,  nor  so  as  to  apply  it  to  different  objects 
than  those  for  which  it  was  confided  to  him.^  And  as  a  rule 
he  has  no  right  to  dispute  his  bailor's  ultimate  title  to  the 
thing ;  but  to  this  an  exception  may  arise  where  the  true 
owner  makes  such  a  demand  upon  him  that  he  cannot  dis- 
regard the  paramount  title  without  peril ;  for  as  between  his 
own  pledgor  and  strangers  thus  asserting  title,  his  only  safety 
is  in  neutrality.^ 

214.  Accumulating  interest,  if  any,  and  all  reasonable  and 
necessary  expenses  incidental  to  the  pledgee's  possession,  are 
understood  to  be  protected  by  the  pledge  as  security.^  As  to 
covering  future  advances  to  be  made  or  liabilities  to  be  in- 
curred, the  mutual  intent  of  the  pledge  parties  must  govern ; 
since  at  all  events  a  pledge  transaction  with  reference  to  a 
certain  debt  or  engagement  does  not  justify  the  pledgee  in 
holding  the  pledge  arbitrarily  for  another  and  different  debt 
or  engagement.^ 

215.  Equitable  remedies  are  sometimes  applied  on  a  pledgor's 
behalf,  to  compel  the   specific    delivery  of  things   in  pledge 

1  Cass  V.  lligenbotam,  100  N.  Y.  2i8. 

2  §  255;  Post  V.  Tradesmen's  Bank,  28  Conn.  420;  27  La.  An.  110. 
Nor  are  technical  objections  to  be  set  up  against  a  due  restoration  of  the 
pledge  when  the  pledgor  makes  or  tenders  satisfaction.  Blackwood  v. 
Brown,  34  Mich.  4;  ante,  210. 

2  Cheesman  v.  Exall,  6  Ex.  341;  1.5  Ala.  601.  This  is  the  usual  rule  of 
bailment.      Ante,  11,  95. 

*  §  256;  16  Neb.  592;  147  111.  570;  22  Fed.  (U.  S.)  183.  Expenses 
properly  and  reasonably  incurred  in  realizing  on  the  pledge  or  in  protect- 
ing it  against  prior  liens  and  taxes  and  in  rendering  it  available  are  thus 
allowed.  So  may  be  a  reasonable  attorney's  fee.  67  Fed.  (U.  S.)  837. 
Extra  compensation  may  sometimes  be  properly  claimed.  Goodwin  ik 
Mass.  Trust  Co.,  152  Mass.  189.  As  to  allowing  interest  through  the 
unjust  delay  of  the  pledgor,  cf .  8  H.  L.  Cas.  338,  345  (unfavorable)  ;  L.  R. 
8  Eq.  331;  22  Fed.  (U.  S.)  183;  44  Md.  47. 

s  §  257  ;  WooUey  v.  Louisville  Banking  Co.,  81  Ky.  527 ;  15  Mass.  389  ; 
4  Conn.  158 ;  Van  Blai-com  v.  Broadway  Bank,  37  N.  Y.  540.  And  see 
219,  post. 


PLEDGE   OR   PAWN  117 

whose  loss  cannot  well  be  compensated  in  damages ;  though 
commonly  an  action  at  law,  for  repossession  of  the  pledge  or 
damages  as  for  its  loss  or  detention,  affords  him  in  general 
an  ample  remedy  as  a  party  aggrieved.^ 

216.  What  should  be  restored  when  the  bailment  ends,  is, 
in  general,  the  identical  thing  pledged;  and  this  should  be 
restored  in  good  condition,  subject,  however,  to  such  loss  or 
damage  as  may  possibly  have  occurred,  imputing  to  the  bailee 
neither  dishonesty  nor  the  lack  of  ordinary  care  and  diligence 
in  the  course  of  the  transaction.^  The  net  income,  profits, 
increase  and  advantages,  derived  from  the  pledge,  ought  also 
to  be  restored  with  the  pledge,  or  duly  accounted  for.^ 

217.  Should  the  pledge  be  lost  or  injured  through  the 
pledgee's  failure  to  use  due  care  and  diligence  or  other  remiss- 
ness of  duty,  the  pledgor  has  his  legal  redress,  though  not  to 
the  avoidance  of  what  he  owed  under  the  secured  undertaking.* 
And  should  it  appear  that  loss  or  injury  to  the  pledge  was 
wholly  without  the  pledgee's  fault,  the  pledgor  must  not 
only  lose  the  value  of  what  he  gave  in  security,  but  be  held 
liable,  besides,  for  what  he  owed  on  the  secured  undertaking, 
like  any  other  debtor.^ 


1  §258;  Taylor  v.  Turner,  87  111.  296;  6  Ire.  (N.  C.)  309.  Family 
relics  and  other  things  of  intrinsic  value  may  thus  be  pursued  in  equity  ; 
or  a  bill  may  be  proper  in  complex  transactions  where  various  rights 
are  entangled.  See  Brown  r.  Runals,  14  Wis.  693;  Squier  v.  Squier,  30 
N.  J.  Eq.  627  ;    Knox  v.  Turner,  L.  R.  9  Eq.  155. 

2  §  259.  See  48  Cal.  99  ;  Squier  v.  Squier,  30  N.  J.  Eq.  627;  Lawrence 
V.  Maxwell,  53  N.  Y.  19;  Thompson  v.  Toland,  48  Cal.  99  (title  acquired 
to  the  thing  on  settling  for  its  full  value). 

3  §  259;  29  Cah  142;  49  Vt.  474. 

^  §§  260,  261.  Proceedings  for  account,  in  equity  or  otherwise,  may 
be  desirable  in  complicated  cases  to  determine  as  to  the  pledgor's 
balance  or  surplus.  54  Penn.  St.  474;  104  Mass.  188.  Or  for  enjoining 
a  sale. 

5  See  May  v.  Sharp,  49  Ala.  140  ;  Reeves  v.  Plough,  41  Ind.  204;  67 
Me.  570;  18  Minn.  232;  Sheldon  v.  Southern  Express  Co.,  48  Ga.  625. 
And  see  32  Ark.  742 ;  37  N.  Y.  540.  If  a  pledgee  without  his  pledgor's 
consent  renews,  extends,  surrenders,  or  substitutes  a  note  pledged  as 
collateral,  he  must  account  to  his  pledgor  in  full.      41  Neb.  754. 


118  THE    LAW   OF   BAILMENTS 

218-  In  fine,  the  transaction  of  pledge  becomes  extinguished, 
according  to  universal  principle,  by  the  complete  discharge 
and  satisfaction  of  the  debt  or  engagement  thereby  secured, 
together  with  such  incidental  charges  or  expenses  as  may 
have  lawfully  accrued.  And  since  discharge  and  satisfaction 
may  take  place,  not  only  by  one's  receiving  complete  payment 
and  fulfilment,  but  by  his  taking  a  higher  or  different  security,, 
by  releasing  and  waiving  his  rights,  or  through  operation  of 
law,  it  will  readily  be  inferred  that  the  pledge  contract  may 
be  extinguished  in  a  corresponding  variety  of  ways.^  After 
the  discharge  and  extinguishment  of  the  pledgor's  main  debt 
or  engagement,  in  any  of  these  modes,  the  pledged  property 
will  presumably  revert  at  once  to  the  pledgor,  and  the  pledgee, 
as  such,  can  have  no  further  right  to  hold  it.^  And  as  to  the 
proceeds  of  pledge  securities  sold  or  collected,  which  remain 
in  the  pledgor's  hands,  the  rule  is  similar.^ 

219.  But  a  mere  renewal  or  extension  of  the  note  or  obliga- 
tion which  the  pledge  was  meant  to  secure,  is  to  be  distin- 
guished from  discharge  and  satisfaction  ;  and  such  renewal  or 
extension  is  not  presumed  to  discharge  the  securit}'.*  And 
novation,  or  the  taking  of  new  security,  will  operate,  if  so 
intended  by  the  parties,  as  simply  a  continuance,  or,  perhaps, 
a  renewal  of  the  pledge  contract  by  substitution.^  So  far  as 
concerns  pledgor  and  pledgee  alone,  there  might  be  a  series  of 
'  obligations  incurred  and  of  pledges  for  security,  stretching  on 
indefinitely;  and  the  main  issue  throughout  is  that  of  their 
mutual  intention.^ 


1  §  263.  As  where  the  pledgee  accepts  other  property  in  full  settlement 
of  the  secured  debt.     Dupee  i\  Blake,  148  111.  4.");3. 

2  148  111.  453;  18  Cal.  309;    G2  Ga.  271;  131  Mass.  14. 

3  lb. ;  41  N.  Y.  Super.  467. 

"  §  263;  132  111.  120  ;  70  Md.  343  ;  Thompson  v.  Toland,  48  Cal.  09  ; 
34  La.  An.  927;  Cotton  v.  Atlas  Bank,  145  Mass.  43  ;  94  I'enn.  St.  309; 
4  Col.  138;  53  Fed.  (U.  S.)  41  ;  2  Leigh  (Va.),  493;  62  Neb.  689. 

5  §  263;  87  Ga.  339;  Girard  Ins.  Co.  v.  Marr,  46  Penn.  St.  504. 

^  The  modern  transaction  of  pledge  or  collateral  security,  we  may 
finally  add,  involves  often  some  intricate  details  ;  but  general  maxims  of 
equity  in  aid  of  the  principles  we  have  set  forth  in  this  chapter  will  readily 


PLEDGE   OR  PAWN  119 

solve  them  for  the  most  part ;  a  further  difficulty  arising  from  the  appli- 
cation of  those  rules  to  so  many  modern  kinds  of  incorporeal  personal 
property.  The  fair  priorities  among  parties  in  or  out  of  possession, 
bona  fide  conduct  pursued  to  one's  disadvantage  without  some  notice 
which  another  who  claims  adversely  should  have  given  but  did  not,  and 
the  convenient  practice  of  sinijilifying  remedies  in  court  by  allowing  one 
to  recoup  and  counter-claim,  all  find  scope  in  our  present  law  of  pledge  ; 
and  the  object  to  be  steadily  kept  in  view,  in  comparing  such  cases,  is  to 
do  justly  and  equitably  by  all  concerned,  so  far  as  the  circumstances 
permit.     §  264. 


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PART  V. 


EXCEPTIONAL   BAILMENTS   FOR  MUTUAL 
BENEFIT. 

POSTMASTERS  AND  INNKEEPERS. 


CHAPTER  I. 

POSTMASTERS. 

220.  The  exceptional  character  of  the  bailments  to  which  the 
present  volume  will  henceforth  be  confined  consists  in  nothing 
unique  in  the  bailment  itself ;  but  the  law  asserts  an  excep- 
tional rule,  from  a  regard  less  to  the  private  intention  of  the 
bailment  parties  than  to  the  pregnant  circumstance  that  the 
particular  bailee  has  accepted  the  thing  while  in  the  exercise  of 
an  important  vocation  which,  consistently  with  the  public 
welfare,  must  be  treated  as  a  public  trust.  The  exceptional 
bailment  of  the  thing  is  made  to  one  who  shall  perform,  not 
on  his  simple  individual  undertaking,  but  as  one  of  a  well- 
recognized  class.  And  here  our  three  classes  are  Postmasters, 
Innkeepers  and  Common  Carriers.^ 

221.  Such  a  bailment  necessitates,  however,  a  hiring,  an  em- 
ployment for  reward.  For,  should  an  innkeeper  give  a  stran- 
ger a  bed  in  his  house  out  of  charity,  or  a  common  carrier 
take  a  package  gratuitously  to  its  destination,  this  would  con- 
stitute a  bailment  out  of  his  course  of  business ;  and,  the 
common  incentive  of  a  business  compensation  wanting,  his 
bailment  responsibility  would  not  be  such  as  we  are  now  to 
consider,  but  that  of  a  mere  private  individual,  and,  in  fact, 
of  a  gratuitous  bailee.^ 

1  §  264.  2  §  265. 


POSTMASTERS  121 

222.  Postmasters,  Innkeepers  and  Common  Carriers  are  here 
to  be  considered  in  order,  in  all  of  which  vocations  the  bail- 
ment is  regularly  for  recompense.  But  in  the  case  of  Post- 
master, there  is  a  vocation  exercised  by  government,  by  the 
public,  so  that  a  bailee's  legal  accountability  to  his  bailor 
must  be  exceptionally  small ;  while  with  Innkeepers  and 
Common  Carriers  there  is  a  vocation  carried  on  by  private 
parties,  but  guarded  peculiarly  by  public  policy,  and  hence 
one's  legal  accountability  is  exceptionally  great.^ 

223.  The  three  distinguishing  elements  of  a  public  bailment 
vocation  are  these,  as  the  courts  have  defined  and  applied  the 
law :  Aj;The  bailee  must  serve  the  public  alike  and  not  select 
patrons  at  pleasure ;  a  condition  quite  unlike  the  usual  pur- 
suit of  business  by  private  individuals.  ^pHe  is  held  to  an 
exceptional  degree  of  responsibility,  which  approximates  insur- 
ance. ^^By  way  of  offset  or  limitation  to  these  conditions, 
the  bailee  may  always  claim  his  reasonable  recompense  in 
advance;  and  hence  his  service  to  the  public  alike  does  not 
compel  Mm  to  take  any  risk  of  pecuniary  loss  from  strange 
patrons.  These  three  elements  where  private  persons  exer- 
cise, will  be  developed  in  discussion  later.^ 

224.  The  exceptional  responsibility  of  a  Postmaster,  or  rather 
his  legal  accountability  to  the  sender  of  a  letter  or  package  in 
the  mails,  comes  from  this  admitted  state  of  things  in  Great 
Britain  and  the  United  States  :  that  government  carries  on 
the  post-office ;  and  the  sovereign  authority,  on  broad  reasons 
of  policy,  refuses  to  submit  its  conduct  to  judicial  inspection, 
or  to  respond  to  the  suit  of  any  private  individual.  The 
bailor  who  suffers  from  maladministration  may  have  abstract 


2  §  266  a.  A  legislature  may  by  enactment  give  the  like  character  of 
public  vocation  wholly  or  partially  to  other  analogous  pursuits  where 
favoritism  would  be  injurious  to  the  public;  and  indeed  as  to  the  first  and 
third  elements  alone  we  see  an  inclination  to  apply  the  law  of  the  text  to  the 
business  of  telegraph,  telephone,  gas  and  water  companies,  not  strictly  of 
the  bailment  character,  but  subject  to  like  considerations  of  policy.  See 
Western  Union  Co.  v.  Dubois,  128  111.  248.  And  as  to  sleeping-car  com- 
panies, see  106  111.  222. 


122  THE  LAW  OF  BAILMENTS 

right  on  his  side ;  but  the  courts  are  shut  to  him,  and  conse- 
quently his  legal  injury  is  without  the  means  of  redress.  As 
for  the  individual  postmaster,  he  is  but  a  public  agent,  or  ser- 
vant of  the  government,  and  under  the  usual  rules  of  master 
and  servant  he  should  not  answer  personally  to  bailors  for  the 
merely  careless  performance  of  his  master's  business.  In  a 
w^ord,  the  legal  situation  is  that  of  a  truncated  a^eijpy :  of  an 
agency  where  legal  process  cannot  reach  the  principal,  if  the 
bailor  suffers  an  injury  through  careless  transmission.^ 

225.  Thus  closely  is  our  postal  system  subservient  tO 
sovereign  power ;  carried  on,  in  fact,  by  a  principal  who,  like 
one  within  a  military  fortress,  refuses  to  be  served  with  civil 
process.  But  to  a  partial  extent  statutes  now  afford  legal 
redress  to  individuals  who  encounter  injury  in  the  course  of 
their  contract  dealings  with  supreme  authority .^  Should  a 
common-law  country  ever  submit  to  a  legal  exposition  the 
rightful  standard  of  government  responsibility  to  individual 
bailors  as  a  mail-carrier,  the  courts  would  not  probably  reckon 

*  §  267.  The  business  of  mail  transportation  is  essentially  forward- 
ing, or,  as  the  law  would  now  term  it,  carrying  things;  and  formerly, 
on  our  Pacific  slope,  before  railways  spanned  the  American  continent, 
private  companies  took  a  large  share  of  this  business  and  its  profits,  be- 
cause they  had  better  facilities  than  government  for  making  quick 
delivery,  and  afforded  more  ample  insurance  against  loss.  See  23  Cal. 
185.  Government  carries  the  mails  as  the  bailee  of  chattels;  and  not 
only  may  a  letter  enclose  money  and  valuable  pajiers,  but  letters  them- 
selves are  personal  property ;  so,  too,  are  newspapers,  cards,  manuscripts, 
packages  of  merchandise,  etc.  The  government,  represented  by  designated 
public  officers,  becomes  the  bailee,  and  the  postal  stamp  indicates  the 
bailment  compensation,  taken  in  advance,  which  constitutes,  we  are  to 
observe,  the  revenue,  not  of  the  officer,  but  of  the  government  which 
employs  him.  For  the  progress  of  mail  transportation,  as  a  public 
vocation  pursued  and  monopolized  by  the  government,  see  §  268;  10 
Fed.  (U.   S.)  609;  17  Fed.   (U.   S.)  837. 

-  §  269 ;  Jackson  ex  parte,  96  U.  S.  727  (general  power  of  Congress  to 
regulate  at  discretion)  ;  187  U.  S.  94.  Recent  statutes  permit  of  petty 
claims  for  indemnity  upon  the  government  where  the  mail  was  regis- 
tered and  culpable  loss  occurred  in  transmission.  English  legislation 
was  earlier  in  this  respect.  And  as  to  the  Court  of  Claims  see  1  Am.  Law 
Eev.  653. 


POSTMASTERS  123 

this  at  the  extraordinary  standard  of  a  common  carrier,  since 
widely  different  considerations  of  pnblic  policy  apply.  But 
that  a  bailment  duty  of  some  sort  co-exists  on  the  part  of 
government,  apart  from  the  adequate  means  of  enforcing  it, 
we  cannot  reasonably  doubt.^ 

226.  The  individual  postmaster,  or  the  postmaster-general,'' 
therefore,  while  acting  honestly  and  committing  no  wilful 
injury,  is  not  personally  liable  to  the  sender  of  articles  by 
mail  for  negligent  losses ;  and  this  rule  extends  to  the  duly 
appointed  and  sworn  deputies  and  assistants,  to  mail  con- 
tractors, mail  carriers  and  the  like,  who  are  engaged  in  such 
business ;  for  they  are  all  servants  of  the  government,  per- 
forming certain  duties  in  connection  with  other  public  ser- 
vants, and  must  answer  to  their  master  or  principal  alone.^ 

227,  But  the  usual  limits  of  agency  here  apply ;  and  for  loss 
or  injury  occasioned  to  the  sender,  outside  the  exercise  of  this 
public  vocation,  or  by  negligence  in  managing  one's  own  pri- 
vate business,  or  through  one's  wilful,  wanton  and  tortious 
misconduct,  the  postmaster  or  public  agent  is  not  protected 
against  his  bailor.^ 

1  §  269.  Were  government  lawfully  and  constitutionally  to  monopolize 
railway  traffic,  the  same  practical  bailment  immunity  would  at  once  re- 
sult, unless  Congress  ordered  it  otherwise,  in  which  case  a  vast  burden 
of  public  litigation  would  ensue,  all  of  which  suggests  a  strong  argument 
against  making  government  a  common  carrier  at  all. 

^  §  270;  Whitfield  v.  Despencer,  Cowp.  754,  7G5,  per  Lord  Mansfield; 
Keenan  v.  Southworth,  110  Mass.  474;  Central  R.  v.  Lampley,  76  Ala. 
357;  13  Ohio,  523  ;  2  Fost.  (X.  H.)  252.  And  as  to  money  order  funds 
see  58  Fed.  (U.  S.)  766. 

8  §  271.  As  to  assistants,  private  or  not  duly  qualified,  see  Ford  v. 
Parker,  4  Ohio  St.  576;  Sawyer  u.  Corse,  .17  Gratt.  (Va.)  230.  A  post^ 
master  is  liable  for  losses  really  occasioned  by  the  careless  management 
of  his  own  private  store  or  dwelling,  where  he  happens  to  keep  the  post- 
office.  Raisler  v.  Oliver,  97  Ala.  710;  4  Ohio  St.  576.  And  still  more 
clearly  for  his  own  wanton,  dishonest,  and  fraudulent  conduct,  as  in 
breaking  open  letters  and  purloining  tlieir  contents.  Dunlop  i\  Munroe, 
7  Cr.  (U.  S.)  242,  4  Ohio  St.  576  ;  8  Watts  (Penn.),  453;  110  Mass.  474. 
All  this  conforms  to  the  general  rule  of  agency  ;  and  so,  too,  where  the 
postmaster  transcends  or  goes  outside  of  his  public  employment,  the  law 
of  agency  will  not  shield  him.     106  Mass.  446  (an  extreme  case).     Regis- 


124  THE   LAW   OF   BAILMENTS 

tered  letters  require  stricter  care,  considering  the  circumstances,  than  un-. 
registered  letters,  and  sealed  matter  than  unsealed  matter.     27  Neb.  38. 
See  further,  12  Fed.   (U.  S.)  675  (no  injunction  lies  for  refusing  to  de- 
liver,  but  seinhle  replevin  or  a  suit  for  damages).     As  "to  mail"  see 
6  Daly  (N.  Y.),  558. 

The  Telegraph  and  Telephone  Business  is  monopolized  by  gov- 
ernment in  Great  Britain,  but  not  in  the  United  States.  Nor  does  such 
business,  in  strictness,  involve  a  bailment  (i.  e.,  delivering  over  an  identical 
chattel),  though  analogous  in  some  respects.  Private  telegraph  and  tele- 
phone companies  are  often  treated  as  exercising  a  public  vocation,  in 
being  bound  to  serve  the  public  alike  (128  111.  248,  ante,  223)  ;  but  there 
appears  no  exceptional  liability,  but  rather  the  liability  which  is  analo- 
gous to  that  of  ordinary  bailees  for  hire.     §  272,  note. 

If  a  common  carrier  becomes  liable  at  all  to  the  sender  or  addressee 
of  mail  matter,  which  he  carries  under  contract  with  the  government, 
the  standard  of  liability  is  that  of  ordinary  bailee  for  hire  only.  113  Fed. 
(U.  S.)  414;  117  Fed.  (U.  S.)  434;  Boston  Ins.  Co.  v.  Chicago  R.,  Iowa 
(1902). 


CHAPTER  11. 

INNKEEPERS. 

228.  The  vocation  of  innkeeper  falls  -well  under  the  head  of 
bailment  ill  respect  of  caring  for  animals,  baggage,  and  other 
personal  property,  committed  by  a  guest  to  his  host's  keep- 
ing; which  topic,  inclusive  of  the  innkeeper's  lien  thereon 
for  his  charges,  affords  almost  the  only  point  of  view  from 
which  our  civil  courts  have  steadily  regarded  the  rights  and 
duties  of  this  interesting  class  of  persons ;  though  one's 
treatment  of  his  guest  has  sometimes  been  discussed,  while 
the  enforcement  of  liquor  and  license  laws  occasionally  com- 
mends the  innkeeper  to  the  inspection  of  other  tribunals.^ 

229.  Four  preliminary  points  are  to  be  considered,  before 
dwelling  at  length  upon  the  exceptional  measure  of  responsi- 
bility which  the  common  law  has  affixed  to  innkeepers  for  the 
advantage  of  the  public.  (1^  >who  are  innkeepers ;  ;.(2)  who 
are  guests ;  (3)  to  what  property  of  the  guest  does  the  excep- 
tional liability  relate ;  (4)  limits  of  tlie  relation.  And  here 
let  us  bear  in  mind  that,  as  in  our  other  instances  of  excep- 
tional bailment,  the  exception  is  found  in  one's  rewarded  ex- 
ercise of  a  public  vocation  to  which  public  policy  assigns  a  rule.^ 

230.  Who  are  innkeepers  must  depend  upon  all  the  cir- 
cumstances presented  in  a  particular  case ;  and  a  jury  may 
properly  decide,  under  judicial  instructions,  wliether  one  is 
an   innkeeper  or  not,   upon  all  the    proof   submitted.^     The 

^  §  273.  As  to  the  nature  and  origin  of  this  exceptional  liability  (which 
applies  both  at  the  common  and  the  civil  law),  see  §  274.  In  early  times 
when  the  traveller  journeyed  by  slow  conveyance,  public  policy  took  heed, 
in  England  at  least,  that  at  an  inn  one  should  rest  as  securely  from 
thieves  or  robbers  as  though  in  his  own  home. 

-  §  275. 

8  §  276 ;  Clary  v.  Willey,  45  Vt.  55. 


126  THE   LAW   OF   BAILMENTS 

innkeeper  may  be  either  an  individual  or  a  partnership,  or  a 
corporation.^ 

231.  Between  tavern,  hotel  or  restaurant,  there  are  shades  of 
difference  affecting  the  present  issue.  A  mere  restaurant 
keeper  is  not  an  innkeeper ;  ^  nor  is  a  strict  apartment-house 
an  inn ;  ^  yet  apartment-houses  which  leguhirly  entertain 
transients  besides,  or  hotels  on  the  "  European  plan  "  so  called, 
where  one  engages  his  lodging  and  pays  at  the  restaurant 
only  for  such  meals  as  he  may  choose  to  order,  are  rightfully 
deemed  inns  at  the  law,  in  such  respects.'* 

232.  Boarding-house  keepers  should  also  be  distinguished 
from  innkeepers,  since  their  lodging  and  entertainment  is  com- 
monly furnished  with  a  certain  privacy  and  Avithout  a  public 
title.^  A  boarding-house  or  lodging-house  keeper,  pursuing 
that  means  of  livelihood,  is  again  to  be  distinguished  from  a 
private  householder  who  only  casually  or  upon  special  consid- 
eration receives  a  boarder  or  lodger  into  the  family.^ 

233.  On  the  whole,  therefore,  the  vocation  of  innkeeper  must 
depend   upon    many   circumstances   combined :  such   as    the 

1  §  279;  Dixon  v.  Birch,  L.  R.  84,  135. 

2  §  277.  Both  "  taverns  "  and  "  inns  "  are  words  of  humble  extraction ; 
though  the  latter  word,  now  falling  into  popular  disuse,  may  serve  all  the 
better  for  legal  use  in  this  discussion.  The  modern  "  hotel,"  "  house," 
etc.,  signifies  simply  a  genteel  inn.  Publicity,  in  the  name  of  the  house, 
hi  a  sign,  in  advertisements  or  cards,  in  the  use  of  a  register,  a  public 
office,  a  baggage  room  or  a  public  parlor,  all  bear  upon  issues  like  the 
present.     See  Cromwell  v.  Stephens,  2  Daly  (N.  Y.),  15. 

As  to  merely  furnishing  food  or  drink  to  the  public,  see  Walling  i'. 
Potter,  35  Conn.  183  ;  Queen  v.  Rymer,  2  Q.  B.  D.  136.  A  sleeping-car 
company,  or  a  steamship  company,  cannot  be  deemed  "an  innkeeper," 
towards  the  passengers  who  patronize  it.  Pullman  Palace  Car  Co.  v. 
Smith,  73  111.  300 ;  Clark  v.  Burns,  118  Mass.  275. 

8  §  279;  Pinkerton  v.  Woodward,  33  Cal.  557;  2  Daly  (N.  Y.),  15. 

*  See  Johnson  v.  Chadbourn  Co.,  89  Minn.  310. 

^  The  keeper  of  a  boarding-house  generally  reserves  the  choice  of 
comers  and  the  terms  of  accommodation,  contracting  specially  with  each 
customer  and  most  commonly  arranging  for  long  periods  and  a  definite 
abode.  See  §  278;  2  Daly  (N.  \^),15;  Pinkerton  v.  Woodward,  33  Cal. 
557;  8  C.  B.  n.  s.  254  ;  Dansey  v.  Richardson,  3  El.  &.  Bl.  144. 

«  §  278;  Cady  c.  McDonald,  1  Lans.  (N.  Y.)  484. 


INNKEEPERS  127 

regularity  of  one's  occupation ;  publicity ;  one's  method  of 
receiving  compensation ;  and  his  means  of  accommodating  all 
who  may  choose  to  come  and  go.  In  short,  an  innkeeper,  one 
who  exercises  the  public  vocation  we  are  now  describing,  may 
well  1)6  defined  as  one  who  regularly  keeps  open  a  public 
house  for  lodging  and  entertainmg  transient  coriiers7oa""the 
general  expectation  of  his  suitable  recompense.^' 

234.  "Who  are  guests  depends  also  upon  all  the  circumstances, 
and  the  strict  bailment  relation  arises  only  with  reference  to 
such  parties  as  the  law  denominates  guests,  and,  of  course,  to 
guests  taken  in  for  recompense.^  Many  make  more  or  less 
personal  use  of  a  public  house,  or  are  on  the  hotel  premises 
at  one  time  or  another,  who  yet  do  not  put  themselves  on  the 
legal  footing  of  a  guest.^ 

235.  Transients  and  boarders  are  to  be  distinguished  ;  and  one 
who  boards,  whether  at  a  boarding-house  or  by  special  arrange- 
ment at  an  inn,  cannot  demand  of  his  bailee  the  exceptional 
responsibility  of  innkeeper  for  the  propert}^  he  brings  with 
him.4 

236.  Upon   the  -whole,  in  determining  the   status   of  guest,  all 

^  §  279;  cases  ante.  There  may  be  au  inn  for  summer  or  for  winter 
resort  only,  or  only  during  some  exposition,  etc. 

■^  §  280.  One  who  keeps  a  public  house  may,  not  inconsistently,  carry 
on  a  restaurant,  cater  for  a  select  company,  serve  liquors  at  a  bar,  keep  a 
shaving  saloon,  or  permit  outside  parties  to  get  up  a  ball  on  his  premises  ; 
and,  as  to  strangers  who  avail  themselves  of  such  extraneous  service,  or 
mere  callers  or  loungers,  he  is  no  innkeeper  at  all.  12  Mich.  52;  55  Barb. 
(N.  Y.)  188 ;  Queen  v.  Rymer,  2  Q.  B.  D.  136.  And  one's  horse  may  be 
stabled,  without  his  stopping  at  the  inn,  so  as  to  exclude  the  liability  of 
strict  innkeeper  for  the  animal ;  while  on  the  other  hand  one  may  be 
personally  a  guest  without  confiding  his  horse  in  such  relation.  68 
Me.  489;  66  N.  J.  L.  654  ;  Mowers  v.  Fethers,  61  N.  Y.  34 ;  3  Q.  B.  D. 
484. 

^  One  may  come  upon  the  inn  premises,  as  though  intending  to  be  a 
guest,  but  failing  to  register  and  avoiding  inn  charges,  while  tipping  the 
porter  for  a  privilege.  Strauss  v.  County  Hotel  Co.,  12  Q.  B.  D.  27 ;  5  T. 
11.  273.  Cf.  Medawar  v.  Grand  Hotel  Co.  [1891],  2  Q.  B.  11  (a  guest  in 
temporary  quarters);  10  Daly  (N.  Y.),  265. 

*  §  281;  IJeale  v.  Posey,  72  Ala.  323;  5  Bush  (Ky.),  41;  Johnson  v. 
Reynolds,  3  Kaus.  257;  36  Iowa,  651;  Hall  v.  Pike,  100  Mass.  495;  Wiser 


128  THE   LAW  OF   BAILMENTS 

the  facts  and  circumstances  of  the  relation  must  be  considered, 
^^onimonly  the  guest  is  a  temporary  sojourner  wlio  puts  up 
at  the  inn  to  receive  its  customary  lodging  and  entertainment; 
and  so  long  as  one  keeps  this  transient  character.^;  One  who 
is  only  an  innkeeper  is  presumed  to  entertain  and'lodge  guests 
alone  ;  but  where  he  keeps,  besides,  a  general  bar  or  restau- 
rant, or  where  he  provides  for  both  guests  and  boarders,  or 
where  he  lets  apartments  and  entertains  transients  besides, 
the  status  of  guest  must  be  carefully  considered.^ 

237.  The  property  of  a  guest  Avhicli  the  innkeeper's  liability 
covers,  at  the  common  law,  includes,  not  baggage  alone,  but 
whatever  else  the  guest  may  have  brought  within  the  inn 
precincts.^  Modern  legislation  tends  to  mitigate  the  ancient 
rigor  in  this  respect.* 

238.  There  are  just  limits  of  the  relation,  and  limits  of  inn 
precincts.  One  may  be  a  bailee  on  the  usual  footing,  before 
or  after  the  innkeeping  relation  itself,  with  its  exceptionally 
large  responsibility.^     So,  too,  it  is  for  property  of  the  guests 

V.  Chesley,  53  Mo.  547  ;  43  N.  H.  332 ;  Lusk  v.  Belote,  22  Minn.  468 ;  26 
Vt.  316,  334 ;  35  Wis.  118.  The  decisions  sometimes  run  closely.  See 
Hancock  v.  Rand,  94  N.  Y.  1. 

^  §  282.  And  yet  the  decisions  show  us  that  neither  the  length  of  one's 
stay,  nor  his  place  of  permanent  abode,  nor  the  distance  he  may  have 
travelled,  nor  his  final  destination,  nor  any  special  modification  of  the  inn 
rates,  nor  the  method  of  payment,  can  alone  conclude  the  question  ; 
though  all  such  circumstances  enter  as  material  into  the  proof,  as  like- 
wise would  the  amount  of  accommodation  supplied,  and  the  comer's 
means  of  knowing  what  distinction  his  host  observes  between  house 
boarders  or  lodgers  and  guests. 

For  the  case  of  a  guest  coming  for  immoral  purposes,  cf.  Curtis  v. 
Murphy,  63  Wis.  4 ;  66  N.  Y.  S.  1136. 

2  §  282. 

8  §  283  ;  33  Cal.  5.37  ;  30  Minn.  334  ;  7  Cush.  (Mass.)  417 ;  8  Co.  33  ; 
17  Q.  B.  261  ;  Kellogg  v.  Sweeney,  46  N.  Y.  291.  In  the  days  of  slow 
travelling  on  the  king's  highway,  amid  great  dangers  of  robbers,  there 
was  more  policy  for  such  a  rule  than  at  the  present  time.  One's  horse  and 
carriage  may,  of  course,  be  included,  or  cattle  brought  to  a  drover's  inn. 
Hilton  V.  Adams,  71  Me.  19. 

*  §284.  See  past  as  to  legislation;  14  La.  An.  324;  13  Md.  126 
("baggage  ").     The  guest's  own  carelessness  may  be  set  up. 

^  §  285;  12  Q.  B.  D.  27  (property  lost  before  one  has  become  a  guest); 


^^ 


INNKEEPERS  129 

•udthin  the  inn  precincts,  so  called,  to  which  the  strict  relation 
applies ;  though  the  vital  point  is  whether  the  innkeeper  holds 
possession  in  that  capacity.^ 

239.  The  standard  of  an  innkeeper's  responsibility,  under  the 
limitations  we  have  intimated,  is  something  extraordinary 
and  exceptional ;  approximating,  in  fact,  to  that  of  a  common 
carrier.^  And  yet  it  differs  from  that  of  common  caiiier,  as 
we  shall  presently  show ;  involving,  in  fact,  the  quiescent 
duty  of  honest  watcliful  custody,  with  ceaseless  vigilance, 
rather  than  the  active  service  of  transporting  from  one  place 
to  another.^ 

240.  The  cases  are  contradictory  in  dicta,  yet  the  decisions 
are  fairly  consistent.  A  presumption  of  liability  arises  against 
the  innkeeper,  in  case  of  loss,  which  presumption  he  must 
at  least  repel.*  And,  most  of  all,  it  is  observable,  that  for 
the  acts  of  his  domestics  and  servants  about  the  inn,  which 
occasion  the  loss  or  injury  of  a  guest's  goods  and  chattels 
upon  the  inn  precincts,  he  is  responsible,  as  for  his  own 
negligence  or  misconduct ;  ^  and  furthermore,  that  this  re- 
sponsibility extends  to  the  wrongful,  meddlesome  or  care- 
less acts,  affecting  sucli  property,  which  fellow-guests,  or  the 
innkeeper's  family  or  substitutes,  or  others  who  are  about 
the  premises,  with  or  without  permission,  not  of  the  guest's 
own  choosing,  may  have  committed.^  To  this  extent,  at 
least,  our  law  is  insistent,  far  transcending  all  the  usual  dis- 
tinctions of  the  law  of  agency. 

52  Ark.  627;  Miller  v.  Peeples,  60  Miss.  819  (trunk  kept  to  accommodate, 
after  guest  has  paid  his  bill  and  left). 

1  §  285.  Cf.  Hilton  v.  Adams,  71  Me.  19  (inn  stables,  kept  as  such,  or 
sheds  and  outhouses);  Minor  v.  Staples,  71  Me.  316  (a  distinct  bathing 
house,  or  bowling  alley,  or  tennis  court,  not  to  be  deemed  part  of  the 
"inn  ");  66  N.J.  L.  654. 

2  §  286 ;  18  Ohio  St.  343,  350. 

8  §  287,  Roman  law  compared.     §§  287,  289. 

*  §  288,  and  cases  cited;  5  T.  R.  273 ;  Morgan  v.  Ravey,  6  11.  &  N.  277; 
14  Johns.  (N.  Y.)  175;  McDaniels  v.  Robinson,  26  Vt.  337;  Carhart  i;. 
^Vainman,  114  Ga.  632  (guest's  baggage  check). 

6  §  290 ;  33  Cal.  557 ;  26  Ala.  371 ;  39  Ga.  105. 

«  §  290 ;  37  Ga.  252 ;  27  Miss.  652 ;  22  Minn.  468 ;  39  Iowa,  232  ;  6 
Har.  &  J.  47 ;    Sibley  y.Aldrich,  33  N.  H.  553. 

9 


130  THE  LAW  OF   BAILMENTS 

241.  But  beyond  this  point,  the  decided  cases  afford  none 
of  that  firm  support  for  a  standard  of  exceptional  liability 
Avhich  they  supply  in  regard  to  common  carriers.  For  a 
burglarious  entry  into  the  inn,  unaccompanied  by  force  and 
violence,  the  host  would  appear  liable,  as  in  case  of  thefts 
within  ;  ^  but  whether  he  is  equally  liable  for  a  loss  by  forcible 
robbery  from  without  (supposing  him  able  to  repel  all  pre- 
sumption of  fault  or  complicity),  has  not  been  decided ;  and 
still  less  has  he  been  held  liable  for  injury,  loss  or  destruction, 
plainly  due  to  the  irruption  of  mobs  or  rioters.^  For  loss 
occasioned,  without  his  fault,  by  accidental  fire,  the  better 
opinion  is  that  the  innkeeper  is  excusable.^ 

242.  As  in  case  of  the  carrier,  an  innkeeper  is  excused  for 
losses  occasioned  by  act  of  God,  act  of  public  enemy,  act  of 
customer  (or  guest),  and  act  of  public  authority.*  But,  in 
all  cases  of  loss  or  injury  the  direct  and  proximate  cause 
must  be  regarded  in  either  vocation.^ 

243.  An  innkeeper's  liability  for  animals  is  sometimes  con- 
trasted with  that  for  things  inanimate,  as  to  presumptions.^ 

1  §  291;  Clute  v.  Wiggins,  U  Johns.  (N.  Y.)  175;  26  Vt.  317,  338. 
Cf.  18  La.  An.  156. 

■^  §  292.  See  Pinkerton  v.  Woodward,  33  Cal.  557  (innkeeper's  careless- 
ness in  a  robbery)  ;  30  Mich.  259,  261.  Yet  here  a  common  carrier  is 
plainly  liable.     See  Part  VI,  c.  4. 

3  §  293 ;  cf.  Hulett  v.  Swift,  33  N.  Y.  571  (harsh  rule  changed  by 
statute)  ;  33  N.  Y.  577;  61  N.  Y.  377 ;  72  Me.  273  (statute) ;  98  Cal.  678 
(statute);  Cutler  i\  Bonney,  30  Mich.  259;  Johnson  v.  Chadbourn  Co., 
89  Minn.  310;  Merritt  v.  Claghorn,  23  Vt.  177.  Yet  here  a  common 
carrier  is  plainly  liable.     See  Part  VI,  c.  4. 

*  §  294;  post,  Part  VI,  c.  4.  As  in  case  of  the  natural  death  of  a  horse 
or  natural  spoliation  of  goods.  Metcalf  v.  Hess,  14  111.  129  ;  8  Blackf. 
(Ind.)  535;  Howe  Machine  Co.  v.  Pease,  49  Vt.  477. 

^  §  295.  Where  the  circumstances  of  loss  or  injin-y  impute  bad  faith  or 
the  want  of  ordinary  care  as  the  proximate  cause,  all  the  more  clearly 
will  the  innkeeper  be  deemed  liable.  49  Vt.  55 ;  33  N.  H.  553  (improper 
care  or  exposure  of  horse)  ;  55  Barb.  (N.  Y.)  188;  2  Daly  (N.  Y.),  102 
(baggage  check  carelessly  shifted)  ;  Pinkerton  ik  Woodward,  33  Cal.  557 
(insecure  fastenings);  14  Johns.  (N.  Y.)  175;  Shoecraft  v.  Bailey,  25 
Iowa,  553  ;  Olson  v.  Grossman,  31  Minn.  222  (bedding  strangers  together 
needlessly). 

«  §  296  ;  ante,  237.     As  to  money,  baggage  or  other  "  dead  property  " 


INNKEEPERS  131 

244.  The  limitations  of  this  relation  apply,  as  already 
considered.  1 

245.  A  prima  facie  case  is  made  out  against  the  innkeeper  on 
proof  that  one  brought,  as  guest,  certain  property  hifra 
hospitium,  which,  on  proper  demand,  was  not  restored  to 
him ;  and  the  onus  of  exonerating  himself  devolves  then  upon 
the  innkeeper.^  And  the  guest's  action  may  be  grounded  in 
contract,  or  at  his  option,  in  tort.^ 

246.  The  innkeeper's  exoneration  at  the  common  law  arises 
under  any  showing,  such  as  we  have  seen  should  justly  ex- 
cuse him.  And,  most  of  all,  is  regarded  his  excuse,  "  act  of 
customer,"  as  in  the  case  of  a  carrier.* 

brought  to  an  inn,  from  which  the  innkeeper  derives  no  profit,  the  rule 
of  liability  may  be  more  strict  than  where  one's  animal  is  lodged  at  the 
inn  stable ;  for  in  this  latter  case  a  special  charge  is  usually  made. 
Hence,  though  not  clearly  a  guest,  the  patron  may  sometimes  regard  the 
exceptional  liability  as  applying  to  his  animal.  9  Pick.  (Mass.)  280  ; 
28  Vt.  316,  332,  887  (innkeeper's  lien  where  no  lien  as  agistor);  Hilton 
V.  Adams,  71  Me.  19. 

^  §  297 ;  ante,  238.  It  appears  to  be  the  bringing  one's  personal  prop- 
erty as  a  guest  into  the  host's  lawful  possession  and  control,  or  that  of 
his  proper  servants,  that  sets  the  liability  of  innkeeper  in  operation, 
rather  than  an  active  delivery  into  the  host's  personal  custody,  or  even 
getting  the  things  into  the  local  confines  of  the  inn.  See  Norcross  v. 
Norcross,  53  Me.  163;  Rockwell  v.  Proctor,  39  Ga.  105.  Cf.  [1S91]  2 
Q.  B.  11.  And  see  37  Ga.  242;  83  Ga.  696  (inn  carriage  or  porter  sent 
to  depot  to  solicit  custom).  And  as  to  a  departing  guest,  see  §298;  12 
C.  B.  N.  s.  638 ;  5  Barb.  (N.  Y.)  500  (guest's  occasional  absence  with 
intent  to  return);  53  Barb.  (N.  Y.)  451  ;  40  N.  Y.  206 ;  4  Cush.  (Mass.) 
114  (sending  guest  witli  baggage  to  the  station).  After  the  relation 
once  ceases,  the  innkeeper  appears,  properly  speaking,  liable  only  as  an 
ordinary  bailee,  gratuitous  or  otherwise,  as  circumstances  indicate,  for 
the  inanimate  goods  his  departing  guest  may  have  left  in  his  care, 
unless  strict  proof  be  furnished  of  a  different  understanding.  See  2  Lea 
(Tenn.),  312. 

2  §§  299,  300;  53  Mo.  547;  8  Wend.  (N.  Y.)  547;  27  Miss.  657.  A  father 
may  sue  on  behalf  of  his  minor  child,  a  principal  or  true  owner,  because 
of  bailment  by  liis  servant  or  bailee ;  at  the  same  time  that  the  bailor  to 
the  innkeeper  might  sue,  on  general  principle  instead,  as  actual  guest 

8  §  300;  Rockwell  v.  Proctor,  39  Ga.  105. 

*  §  301 ;  ante,  229,  etc.  For  the  excejitional  liability  arises  only  upon 
the  strict  relation  of  innkeeper  and  guest  upon  recompense,  as  to  personal 


132  THE   LAW   OF   BAILMENTS 

247.  Act  of  customer  may  be  set  up,  as  showing  that  the 
guest  himself  proximately  and  directly  caused  the  loss  ;  and, 
since  a  mixed  custody  quite  commonly  exists  in  such  cases, 
it  is  material  to  ascertain  whether  the  guest  himself  was  at 
fault,  by  his  negligence  or  otherwise.^  But  exoneration 
may  consist  in  showing  that  the  guest  took  upon  himself 
the  exclusive  custody  of  the  property,  or,  at  least,  did  not 
confide  it  to  his  host,  or  did  not  deliver  it  in  the  capacity  of 
guest.^ 

248.  Special  qualification  of  an  innkeeper's  liability  may  be 
made,  as  in  other  bailments,  by  special  contract,  usage  (or 
custom)  and  legislation  ;  and,  of  course,  such  qualifications 
may  apply  in  other  respects.^ 

249.  As  to  qualification  by  special  contract,  this  may  be 
based  upon  mutual  intendment,  provided  that  public  policy 

property  brought  by  the  latter  within  the  inn  precincts.  In  other  cases  of 
bailment  the  usual  standards  apply.     And  see  post,  Part  VI,  c.  4. 

^  §§  304,  305.  Such  cai-elessness  or  misconduct  must,  of  course,  in  order 
to  exculpate  the  innkeeper,  be  clearly  shown  to  have  induced  or  occa- 
sioned the  loss  in  question.  6  E.  &  B.  891 ;  Burrows  v.  Trieber,  21  Md. 
320;  Oppenheim  v.  White  Lion  Hotel  Co.,  L.  II.  6  C.  P.  515;  Meda- 
war  V.  Grand  Hotel  Co.  [1891],  2  Q.  B.  11;  EIcox  v.  Hill,  98  U.  S.  218; 
Shultz  V.  Wall,  134  Penn.  St.  262.  The  guest's  failure  to  use  his  key 
or  fasten  the  room,  or  his  intoxication,  is  a  circumstance  to  be  consid- 
ered against  him,  but  not  a  conclusive  one.  L.  R.  6  C.  P.  515,  520 ;  73 
Ala.  587  ;  60  Ga.  185  ;  145  Mass.  186.  And  see  60  Ga.  185  (an  open 
window).  The  guest  should  be  suitably  careful  about  jewels  or  money 
of  great  value.  21  N.  Y.  111.  His  needless  display  of  valuables  in  a  box 
which  he  leaves  exposed  or  in  the  public  room  is  a  circumstance  against 
him.  17  Q.  B.  261 ;  L.  R.  6  C.  P.  515.  And  see  Chamberlain  /'.  JNIas- 
terson,  26  Ala.  371;  Healey  v.  Gray,  68  Me.  489  (animals  with  vicious 
tricks  not  notified). 

2  §§  302,  303.  See  8  N.  H.  408  (team  put  elsewhere)  ;  Houser  v.  Tully, 
62  Penn.  St.  92  (reposing  confidence  in  strangers  or  unauthorized  per- 
sons, and  not  in  the  host  or  the  host's  suitable  agents) ;  12  Q.  B.  D.  27 ; 
Stewart  v.  Head,  70  Ga.  449  (leaving  valise  at  hotel  office,  without 
calling  attention  to  it  or  giving  name).  One  who  conies  to  the  hotel 
with  merchandise  to  be  shown  and  sold  there  in  some  special  room  does 
not  deal  with  the  innkeeper  as  guest  in  that  respect.  5  Biss.  (U.  S.)  465; 
IMowers  v.  Fethers,  61  N.  Y.  34. 

'  §  308.    So,  too,  as  to  common  carriers.  Part  VI,  c.  5. 


I 


INNKEEPERS  133 

be  not  transcendecl.i  The  reasonable  rules  of  the  mn,  when 
brought  to  a  guest's  knowledge,  and  not  waived,  qualify  upon 
a  like  principle.^ 

250.  The  effect  of  local  custom  and  usage  may  also  have  the 
effect  of  qualifying  or  regulating  liability,  if  the  custom  or 
usage  be  reasonable  and  fairly  within  the  presumed  purview 
of  both  parties. 3 

251.  But  statute  qualifications  of  an  innkeeper's  liability 
prevail  almost  universally  at  this  day,  in  England  and 
America ;  showing  that  public  opinion  tends  far  towards 
exempting  this  vocation  from  extraordinary  risks,  as  travel 
and  the  innkeeping  business  is  now  carried  on.* 

252.  The  innkeeper  is  an  ordinary  bailee  where  the  vocation 
is  not  exercised  towards  the  particular  person  and  his  personal 
property  upon  the  strict  innkeeping  relation.^    And  thus  is  it, 

^  §  309.  Misconduct  or  the  want  of  ordinary  care  may  not  be  thus  ex- 
cused ;  and  for  all  acts  of  his  servants  (and  piobably  of  fellow-lodgers 
and  those  about  the  inn),  directly  occasioning  loss  or  injury,  the  inn- 
keeper must  still  respond,  on  the  principle  of  public  policy,  in  America 
at  least.  See  Yorks  Co.  v.  Central  R.,  3  Wall.  (U.  S.)  107.  But  other 
risks  may  probably  be  guarded  against,  or  a  special  valuation  set,  if 
reasonable,  upon  a  closed  receptacle. 

2  §  310.  Such  as  requiring  the  deposit  of  valuables,  or  of  hats,  over- 
coats, etc.,  in  a  particular  place,  or  that  keys  be  left  at  the  office,  etc. 
(i  H.  &  N.  265,  271 ;  33  Cal.  557;  18  Ohio  St.  343  ;  21  N.  Y.  Ill  ;  41  Vt. 
15.  But  the  rule  must  have  met  with  an  express  or  implied  knowledge 
or  assent.  It  is  not  enough  to  print  a  rule  in  the  register  or  post  a  notice,  / 
if  the  guest  did  not  read  it.  33  Cal.  5-57;  29  Iowa,  232  ;  33  N.  Y.  Super. 
271.  "  Owner's  risk,"  in  an  absolute  sense,  would  seem  unreasonable. 
See  85  111.  App.  677. 

3  §  311 ;  37  Ga.  242 ;  65  Barb.  (N.  Y.)  274 ;  7  Cush.  (Mass.)  417;  L.  R. 
6  C.  P.  51.5. 

*  §  312.  See  modern  local  statutes,  limiting  liability,  where  the  inn- 
keeper provides  a  safe  for  valuables,  to  be  |)laced  in  his  close  custody, 
notices  being  posted,  etc.  And  see  such  statutes  construed.  98  U.  S.  218 ; 
73  Ala.  587;  46  N.  Y.  26G,  291  ;  43  N  Y.  539;  25  Md.  310;  77  Me.  359; 
140  Mass.  123;  31  Minn.  222.  Responsibility  is  thus  limited  to  the 
culpable  acts  of  the  innkeeper  or  his  servants,  causing  a  loss.  But  see 
169  N.  Y.  574  (waiver)  ;    112  Ga.  837. 

^  §  313.  See  Queen  v.  Rymer,  2  Q.  B.  D.  136  (non-paying  guest); 
Stewart  v.  Head,  70  Ga.  449;    Carter  v.  Hobbs,  12  ^Nlicli.  52;   Mowers  v. 


134  THE   LAW   OF  BAILMENTS 

also,  in  the  usual  business  of  boarding-houses  and  lodging- 
houses,  by  the  better  opinion,  or  with  mere  boarders  and 
lodgers  generally.^ 

253.  As  to  his  general  rights  and  duties,  the  innkeeper  is 
bound,  as  one  who  exercises  a  public  vocation,  to  lodge  and 
entertain,  to  tlie  extent  of  his  accommodations,  all  suitable 
persons  who  may  apply .^  Besides  excusing  himself,  however, 
where  one  was  obviously  unsuitable,  he  need  not  trust  any 
guest  for  his  recompense,  but  may  require  the  pay  in  advance,'' 
But  the  keepers  of  boarding-houses,  lodging-houses,  and 
restaurants  may,  as  a  rule,  select  their  own  customers,  and 
deal  with  mankind  on  the  mutual  footing,  for  theirs  is  no 
public  employment.* 

254.  Towards  third  persons  w^ho  come  upon  the  inn  premises, 
either  by  permission  or  intrusion,  and  who  have  no  status  as 

Fethers,  61  N.  Y.  34  (goods  brought  for  show  and  sale).  Any  vocation, 
resembling  that  of  innkeeper,  but  not  such,  nor  a  public  vocation  at  all, 
leaves  the  ordinary  rules  of  bailment  to  apply.    73  III.  360. 

1  §§  314,  315;  Dansey  v.  Richardson,  3  E.  &  B.  144 ;  8  C.  B.  n.  s.  254. 
Cf.  for  American  rule,  ^§  316  ;  6  Daly  (N.  Y.),  33;  1  Utah,  143;  Taylor 
V.  Downey,  104  Mich.  537.     But  see  53  Mo.  .547  ;  3  Kans.  257. 

2  §§  317-319.  The  innkeeper  is  liable  in  damages  (or  perhaps  may  be 
criminally  indicted),  if  he  refuses,  on  tender  of  his  reasonable  recompense, 
to  receive  one  as  a  guest  without  just  excuse.  7  C.  &  P.  213 ;  8  M.  &  W. 
269,  276;  Watson  v.  Cross,  2  Duv.  (Ky.)  14  (married  woman  or  minor 
cannot,  on  that  ground,  be  refused) ;  Atwater  v.  Sawyer,  76  Me.  539  (nor 
one  of  a  class  because  others  of  that  class  had  misconducted);  1  Hughes 
(U.  S.),  541  ;  10  Fed.  (U.  S.)  4.  The  same  rule  applies  as  to  sheltering 
one's  horse  in  the  inn  stable,  if  there  be  one.     §  318. 

But  reasonable  excuse  may  be  alleged  for  such  refusal.  That  the 
house  was  full.  Browne  v.  Brandt,  [1902]  1  K.  B.  696  (/.  e.,  as  to  bed- 
rooms, even  though  the  traveller  demanded  lodging  in  the  coffee  room). 
That  the  traveller  came  drunk,  or  behaved  in  an  indecent  or  disorderly 
manner,  or  was  utterly  disreputable,  or  sought  to  use  the  house  for  a 
criminal  purpose.  Queen  v.  Rymer,  2  Q.  B.  D.  136.  Because  of  some 
infectious  disease,  so  that  health  and  safety  I'equired  it.  §  322 ;  Gilbert  v. 
Hoffman,  66  Iowa,  205. 

8  §  318.    And  see  (mte,  223. 

*  §  321.  It  is  sometimes  suggested,  by  way  of  exception  to  the  general 
rule  of  inns,  that  an  innkeeper  may  hold  himself  out  as  doing  business 
only  for  certain  seasons  or  for  a  particular  class  of  persons.  4  Ex.  367, 
371  (e.g.,  for  drovers,  or  for  invalids). 


INNKEEPERS  135 

guests,  lodgers  or  boarders,  the  innkeeper  stands  as  would 
any  one  towards  persons  who  seek  to  enter  his  private  house 
or  place  of  business ;  with,  however,  the  due  regulation  of 
his  peculiar  vocation  always  in  view.^ 

255.  Inns  should  be  built  and  kept  in  repair  with  due  regard 
to  the  safety  and  convenience  of  the  general  public  who  may 
resort  thither.^  And  in  carrying  on  the  business,  a  certain 
duty  rests  ui3on  the  innkeeper  to  keep  good  order  on  his 
premises  and  to  restrain  the  assaults  of  others  upon  his 
patrons.  ^ 

256.  As  to  his  right  of  recompense  and  lien,  the  innkeeper 
may,  like  the  carrier,  waive  the  requirement  of  pay  in  advance, 
and  trust  his  guest  for  due  recompense,  with  the  security, 
besides,  which  the  law  recognizes,  of  a  lien  upon  the  personal 
property  brouglit  under  his  control  on  the  inn  precincts.*     But, 

^  §  320.  As  to  parties  coming  to  solicit  rival  custom,  etc.,  see 
State  V.  Steele,  106  N.  C.  766;  2  Sumn.  (U.  S.)  221.  A  certain  due 
regulation  of  his  premises  for  the  general  good  and  security  of  his  patrons 
is  always  expected,  as  in  case  of  a  carrier  of  passengers.  To  this  end  the 
innkeeper  may  keep  drunkards,  thieves,  vagabonds,  or  even  suspicious 
persons  off  his  premises;  and  he  may  eject  such  persons,  or  even  one 
whom  he  has  admitted  as  a  guest,  for  outrageous,  indecent  or  disorderly 
behavior,  or  for  gross  and  wanton  defiance  of  his  wholesome  rules. 
§§  319,  320;  106  N.  C.  766;  6  C.  &  P.  723;  8  M.  &  W.  269.  And  see  2 
Q.  B.  I).  lo6  (bringing  dogs  iuto  a  common  room).  But  cf.  120  Penn. 
St.  579;  159  Penn.  St.  480.  As  to  inn  rules  (which  should  be  reason- 
able), see  §  325. 

'^  §  323.  But  for  a  patent  defect  or  inconvenience,  where  no  local 
statute  is  violated,  the  guest  takes  his  own  risk  to  a  just  extent.  Cf.  47 
Fed.  (U.  S.)  690;  97  Ala.  622. 

3  §  323;  Curran  v.  Olson,  88  Minn.  .307;  Rommel  v.  Schambacher,  120 
Penn.  St.  579  (though  the  guest  be  intoxicated).  The  usual  principle  of 
master  and  servant  applies  where  assault  is  by  an  inn  servant.  See  88 
Mo.  App.  72;   40  Cal.  578. 

*  §§  326,  327.  The  innkeeper's  lien  applies,  not  strictly  to  what  the 
guest  owned,  but  to  all  personal  property  received  on  the  faith  of  the  inn- 
keeping  relation,  for  which  the  innkeeper  becomes  responsible.  See  50 
Ga.  573;  7  Cu.sh  (Mass.)  417;  61  N.  Y.  34;  Robins  r.  Gray,  [1895] 
2  Q.  B.  501 ;  3  Q.  B.  D.  484.  Animals  taken  at  the  inn  stable  are  in- 
cluded. And  see  further,  25  Q.  B.  D.  491 ;  10  Rich.  (S.  C.)  300.  It  does 
not  follow  that,  because  a  third  person's  property  is  held  by  the  lien,  such 


136  THE   LAW   OF  BAILMENTS 

neither  with  nor  without  such  Hen  security,  can  the  innkeeper 
make  extortionate  or  unjust  charges,  nor  supply  liis  guests 
witli  unwholesome  victual;  and  drink  or  their  animals  with 
bad  provender.^ 

third  party  is  liable  for  the  bill.  99  N.  C.  523.  Lien  does  not  exteud  to 
detaining  the  person  of  the  guest  or  his  wearing  apparel,  but  criminal 
statutes  are  sometimes  found  for  punishing  persons  who  impose  on  guests. 
3  M.  &  W.  248 ;   28  Minn.  424. 

As  for  loss,  waiver,  or  displacement  of  the  lien,  the  usual  rules  apply. 
See  §  327;  12  C  B.  n.  s.  638;  27  Wis.  202;  14  Gray  (Mass.),  481,  483; 
23  Ch.  D.  330.  Enforcement  of  lien  is  imperfect  at  the  common  law,  but 
local  legislation  sometimes  enables  the  innkeeper  to  sell.  §  327;  46  Mo. 
44 ;  11  Barb.  (N.  Y.)  41 ;  3  Gray  (Mass.),  382.  His  exceptional  liability 
for  such  property  has  ended,  when  he  holds  for  mere  security.  23  Ch.  D. 
330.  And  irrespective  of  a  lien,  the  innkeeper  may,  of  course,  sue  for  his 
recompense  like  any  other  creditor.     2  Sweeny  (N.  Y.),  705. 

Boarding-house  keepers  have  at  law  no  such  lien,  but  local  legislation 
supplies  it  to  a  greater  or  less  extent.     §  329. 

^  §  324;  6  Watts  (Penn.),  65.     As  to  license  see  ib. 


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PART   VI. 

EXCEPTIONAL    BAILMENTS    FOR    MUTUAL    BENEFIT. 

COMMON   CARRIERS. 

V 

CHAPTER  I. 

CARRIERS   IN   GENERAL. 

257.  The  full  flower  of  the  bailment  principle  which  we 
have  repeatedly  set  forth  in  these  pages  appears  in  a  final 
topic  which,  in  practical  consequence  to  modern  society  and 
modern  jurisprudence,  overshadows  all  the  others  grouped 
together.  And  unless  we  determine  to  take  no  precedent  for 
more  than  it  is  worth,  to  keep  fast  hold  of  fundamental  bail- 
ment principles,  and  bear  constantly  in  mind  that  this  trans- 
portation of  movable  property  to  and  fro,  which  involves 
immense  mercantile  and  commercial  interests  such  as  the 
ancient  world  never  dreamed  of,  is  but  a  bailment,  whose 
essence  consists  in  the  delivery  of  a  chattel  for  the  accom- 
plishment of  a  certain  purpose,  to  be  succeeded  by  delivering 
it  back  or  over  when  that  purpose  is  accomplished,  and  that 
the  present  idiosyncrasy  mostly  consists  in  an  extraordinary 
degree  of  responsibilitj'"  to  which  public  policy  chooses  to  sub- 
ject the  class  of  bailees  known  as  Common  Carriers,  we  shall 
lose  our  most  needful  clue.^ 

258.  iJBy  carrier  we   are   to    understand  one  who   undertakes 
to   transport   personal   property  from  one  place   to  another.^ 
Our  common  law  deals  with  two  general  classes  of  carriers: 
(1)  Private  Carriers ;  (2)  Public  or  Common  Carriers.     Pri- 

1  §  330. 


138  THE   LAW   OF   BAILMENTS 

vate  Carriers  —  a  class  which  (if  it  be  a  class  at  all)  compre- 
hends, as  will  hereafter  appear,  only  isolated  cases  of 
transportation,  performed  by  those  whose  usual  vocation  is 
different,  save  where  a  recognized  Public  Carrier  undertakes 
specially  to  act  without  reward  —  rank  as  simple  bailees, 
incurring  the  usual  responsibilities,  and  entitled  to  the  usual 
rights  and  innnunities,  either  of  bailees  with  recompense,  or 
of  bailees  without  recompense,  according  to  the  circumstances 
actually  present.  But  a  Public  or  Common  Carrier  is  one 
whose  regular  calling  it  is  to  carry  chattels  for  all  who  may 
choose  to  employ  and  remunerate  him.  "  Carrier,"  as  a  tech- 
nical term  of  our  law,  is  often  employed  in  this  latter  sense 
alone,^ 

259.  Carriers  by  land  or  \vater  are  usually  distinguished ;  but 
the  transportation  business  of  modern  times  tends  so  con- 
stantly to  forming  continuous  lines,  bridging  broad  rivers,  run- 
ning cars  upon  ferry-boats,  and,  in  fine,  bringing  land  and 
water  transit  under  the  same  control  and  management,  that 
the  line  of  demarcation  between  the  two  classes,  once  so 
boldly  traced,  has  perceptibly  faded  .^ 

260.  The  English  theory  of  an  exceptional  responsibility,  as 
applied  to  common  carriers  of  goods  and  chattels,  is  drawn,  in 
all  probability,  with  its  reasons,  from  Roman  sources,  and 
from  a  praetorian  edict  which  applies  likewise  to  Innkeepers.^ 

^  §  331.  In  the  foregoing  definitions  we  follow  the  established  prece- 
dents. See  Bouv.  Diet.  "  Carrier,"  "  Common  Carrier  ;  "  Story  Bailm. 
§  495  ;  2  Kent  Com.  598.  But  were  the  question  an  open  one,  it  might 
be  argued  that  the  word  "carrier"  should  include  the  undertaking  to 
transport  persons,  instead  of  being  confined,  as  above,  to  the  transporta- 
tion of  chattels ;  and  hence,  that  one  might  speak  of  private  carriers  of 
goods  (or  rather  of  personal  property)  and  private  carriers  of  persons ; 
and  so,  correspondingly,  of  public  or  common  carriers.  But  the  words 
"carrier"  and  "common  carrier"  came  to  be  exclusively  applied  to 
chattel  transportation,  before  rules  affecting  the  transportation  of  pas- 
sengers attracted  judicial  attention. 

2  §  332. 

^  §  333.  "Nautce,  caiipones,  stabularii,  quod  cujusqne  salvumfore  receperint, 
nisi  restituant,  in  eos  judicium  dabo."  Dig.  4,  9,  1  ;  Colquhoun  Rom.  Civ. 
Law,  §  1909,     And  see  as  to  Innkeepers,  ante.     By  naiitce  we  are  to  under- 


CARRIERS   IN   GENERAL  139 

In  a  word,  both  civil  and  common  systems  claim  to  hold  com- 
mon carriers  to  an  accountability  unusually  strict;  but  as 
to  the  limits  of  that  accountability,  they  are  not  in  accord. 
The  Anglo-Saxon  has  apparently  laid  hold  of  the  Roman  idea, 
bat  worked  it  out  according  to  the  genius  of  Anglo-Saxon 
institutions.  ^ 

261.  Hence  the  importance,  at  the  outset,  not  only  of  keeping 
our  excepted  cases  of  innkeeper  and  common  carrier  quite 
apart,  but  likewise  of  preventing  the  common  and  the  civil 
schemes  of  carrier  law  from  intermingling.  For  the  English 
sages  made  their  judicial  precedents  stepping-stones  to  a 
theory  of  bailment  accountability  far  more  rigorous  than  that 
of  the  Romans,  certainly  as  regards  common  carriers,  however 
it  may  have  been  with  the  innkeeper.  Lord  Holt,  in  that 
famous  opinion  pronounced  in  Queen  Anne's  reign,  which 
constitutes  the  groundwork  of  our  modern  law  of  bailments, 
observed :  "  The  law  charges  this  person  thus  intrusted  to 
carry  goods,  against  all  events  but  acts  of  God  and  of  the 
enemies  of  the  king.  For  though  the  force  be  never  so  great, 
as  if   an  irresponsible  multitude  of  people  should  rob  him, 

stand,  not  strictly  sailors,  but  exercitores  navis,  so  that  the  word  may  be 
i-endered  by  "  such  carriers  by  water  as  are  shipowners."  Further,  the 
word  nnris  includes  all  sorts  of  watercraft,  whether  for  the  sea  or  inland 
transportation.  Colquhoun,  -ib.  §  1970  ;  Pand.  14,  1,  1,  6.  See  also  as  to 
the  law  of  modern  Europe,  1  Dom.  Civ.  Law,  Pt.  I.,  b.  1,  tit.  4,  §  8,  5; 
ib.  b.  1,  tit.  16,  §  2 ;  Story  Bailm.  §§  458,  488. 

1  We  should  add,  however,  that  an  English  authority  of  our  day,  as 
eminent  as  Cockburn,  C.  J.,  repudiated  the  notion  (which,  to  those  who 
acknowledge  the  foreign  source  of  such  early  works  of  English  law  as 
that  of  Bracton,  .seems  reasonable  enough)  that  the  English  law  of  car- 
riers was  derived  from  Roman  law.  His  reasons  are:  (1)  That  our  law 
was  first  applied  to  land  carriers,  upon  whom  the  Roman  law  inflicted 
no  extraordinary  liability;  (2)  That  the  Roman  law  made  no  distinction 
as  to  "act  of  God,"  etc.,  but  afforded  immunity  from  casus  fortuitus  as 
well  as  vis  major.  Xugent  v.  Smith,  1  C.  P.  D.  428.  But  it  may  be  said, 
in  reply,  that  law  borrows  foreign  ideas  and  adapts  them,  with  change,  to 
local  and  existing  wants  of  society ;  a  remark  which  holds  strikingly  true 
of  legislative  enactments.  And  again,  if  the  Roman  law  could  not,  by 
construction,  extend  its  provision.s  to  land  carriage,  whence  is  it  that  the 
modern  civilians  derive  their  own  rule  for  such  cases  ?     In  other  words, 


140  THE   LAW   OF  BAILMENTS 

nevertheless  he  is  chargeable."  ^  This  exposition  of  the  car- 
rier's common-law  responsibility  has  sturdily  kept  ground  in 
England  ever  since ;  and  transplanted  to  America,  in  the 
colonial  period,  the  doctrine  took  equally  strong  root  there. 
Of  all  this,  however,  with  other  exceptions,  and  the  possible 
modifications  of  a  carrier's  responsibility,  which  legislation 
and  special  contract  in  this  later  day  appear  to  justify,  more 
in  place  hereafter. 

262.  The  foundation  here  of  exceptional  responsibility  is  the 
public  employment  which  the  carrier  (as  well  as  innkeeper) 
exercises.  ''  This  is  a  politic  establishment,"  says  Lord  Holt, 
"  contrived  by  the  policy  of  the  law,  for  the  safety  of  all  per- 
sons, the  necessity  of  whose  affairs  obliges  them  to  trust  these 
sorts  of  persons,  that  they  may  be  safe  in  their  ways  of  dealing ; 
for  else  these  carriers  might  have  an  opportunity  of  undoing  all 
persons  that  had  any  dealings  with  them,  by  combining  with 
thieves,  etc.,  and  yet  doing  it  in  such  a  clandestine  manner  as 
would  not  be  possible  to  be  discovered.  And  this  is  the  rea- 
son the  law  is  founded  upon  in  that  point."  ^  This  very 
clear  statement  is  so  conclusive  of  the  matter  that  later 
judges  have  constantly  announced  the  same  reason,  with  only 
verbal  variation  ;  and  it  accords  with  Ulpian's  comment  upon 
the  Roman  edict,  centuries  earher.^  OP-ublic  policy,  then,  not 
private  contract,  is  the  foundation  of  the  common  carrier's 
exceptional  responsibility, 

if,  ■when  occasion  first  arose,  England  by  inference  went  from  land  car- 
riage to  water  carriage,  why  miglit  not  tiie  Roman  law  have  gone,  on  a 
similar  exigency,  from  water  carriage  to  land  carriage  ?  It  appears,  to 
say  the  least,  a  strange  coincidence  that  Innkeepers  and  Common  Carriers 
should  have  been  subjected  to  special  rules  of  liability  under  the  Roman 
and  Anglo-Saxon  systems,  so  nearly  allied,  and  yet  so  that  the  earlier  sys- 
tem could  not  have  influenced  the  later.     See  §  333. 

1  §  334 ;  Coggs  v.  Bernard,  2  Ld.  Raym.  909,  918.  See  also  3  Co. 
Litt.  89  a  ;  1  Co.  Inst.  89  a  ;  Moore,  462.     Cf .  Doct.  &  Stud.  Dial.  2,  c.  38. 

-  §  335  ;  Lord  Holt,  in  Coggs  v.  Bernard,  2  Ld.  Raym.  909,  918.  And 
see  12  Mod.  487.     But  cf.  3  Co.  Litt.  89  a ;  Moore,  462. 

^  Maxima  utiUtas  est  hujus  edicii :  quia  necesse  est  plerumque  eorum  fidem 
sequi,  el  res  custudice  eorum  commitiere.  Dig.  Lib.  4,  9,  1.  And  see  Stoi'y 
Eailm.  §  458. 


CARRIERS  IN  GENERAL  141 

263.  But  the  influence  of  compensation  in  this  connection  is 
observable.  The  carrier,  to  be  ciiarged  as  a  public  bailee, 
must  be  exercising  the  public  vocation  on  a  business  footing. 
For  where  one  carries  personal  property  for  another  without 
reward,  he  is  reckoned  chargeable,  like  any  other  bailee  for  a 
bailor's  sole  benefit,  with  slight  diligence  only ;  a  rule  which 
operates  not  only  where  one  casually  conveys  something  as 
a  favoring  friend,  but  also  upon  public  professional  carriers, 
whenever  they  take  the  goods  of  a  particular  party  free,  and 
for  his  exclusive  benefit.  A  departure,  however,  from  one's 
usual  course  of  conduct  in  this  particular  is  not  readily 
assumed;  nor  will  a  bailment  service  be  necessarily  a  ser- 
vice without  reward  for  want  of  an  expected  recompense  in 
money.  ^ 

264.  Private  carriers  for  hire  cannot,  as  a  class,  be  said  to 
exist  at  this  day,  either  in  England  or  the  United  States ;  for, 
whenever  one  plies  the  vocation  of  a  transporter  of  chattels 
from  one  place  to  another,  and  so  holds  himself  out  to  the 
public,  expecting  to  be  paid  for  his  services,  our  law  affixes 
to  the  pursuit  of  his  business,  when  exercised  for  reward,  the 
responsibilities  of  a  public  employment.  ((But  the  relation  of 
private  carrier  for  hire  may  exist  when  one,  not  holding  him- 
self out  to  do  such  business  regularly,  undertakes,  for  reward, 
on  a  special  occasion,  to  transport  property  for  some  particu- 
lar person,  or  perhaps  persons.^X  Furthermore  there  are  pur- 
suits, analogous  at  least  to  catrying,  which  are  nevertheless 
pronounced  exempt  iisually  from  the  rule  of  Common  Carrier  ; 
these  can  hardly  be  logically  classed  among  Private  Carriers, 
but  at  all  events  they  involve  this  same  ordinary  bailment 
standard ;  the  vocation  being  in  effect  a  private,  not  a  public, 
one  in  respect  of  goods  and  chattels.^ 

1  §  336;  Coggs  v.  Bernard,  2  Ld.  Raym.  909;  Jones  Bailm.  62,  63; 
Beauchanip  v.  Powley,  1  j\Ioo.  &  R.  38 ;  Fay  v.  Steamer  New  World,  1 
Cal.  3-18;  ]\Iichigan  Central  R.  v.  Carrow,  73  111.  348;  Gray  v.  Missouri 
River  Packet  Co.,  64  Mo.  47. 

2  §  337.     See  ante,  74. 

^  See  e.  g.  street  railways,  sleeping-cars,  forwarding  merchants,  tow- 
boats,  etc.,  in  next  chapter. 


142  THE   LAW   OF   BAILMENTS 

265.  A  common  carrier  is  further  bound,  according  to  llis 
facilities,  to  receive  and  carry  all  goods  and  chattels  which 
are  offered  him  for  transportation  in  the  line  of  his  vocation, 
provided  his  reasonable  compensation  be  likewise  tendered 
him.  This  is  another  consequence  resulting  from  the  public 
employment  which  such  carriers  are  declared  to  exercise, 
since  private  carriers,  and  all  who  exercise  a  private  vocation, 
are  free  to  select  those  with  whom  they  shall  deal,  unless 
stipulating  to  the  contrary.^ 

266.  Common  carriers  by  land  or  water  follow  the  same 
essential  rule  of  responsibility.  Yet  it  appears  that  the 
peculiar  perils  incident  to  navigation,  and  the  peculiar  meth- 
ods of  averting  them,  give  rise  to  details  of  application  in 
the  respective  classes  which  do  not  quite  coincide ;  modern 
legislation  and  policy  favoring  carriers  by  water  who  seek  to 
reduce  their  legal  responsibility  more  than  carriers  by  land.^ 

267.  The  earliest  picture  afforded  us  of  the  English  common 
carrier  by  land  is  that  of  a  horseman  toiling  along  the  highway 
between  two  market-towns,  laden  with  money,  light  parcels, 
and  letters,  whose  chief  peril  is  that  of  being  set  upon  by 
thieves  in  some  lonely  place,  or  having  his  overloaded  horse 
slip  down  in  the  mire.^  When  the  reign  of  Elizabeth  began, 
inland  transportation  on  its  most  extensive  scale  was  by  strings 
of  pack-horses  ;  then  came  the  rude  wagon  without  springs, 
which,  improved,  gradually  became  a  fairly  convenient  vehicle, 
both  for  goods  and  the  liumbler  sort  of  passengers.  The  lum- 
bering York  wagon,  drawn  by  Flemish  cattle,  which  was  used 
in  the  early  part  of  the  eighteenth  century,  is  preserved  to  us 
by  Hogarth's  pencil.'*     And  this  was  the  land  carriage  of  Coke 

1  §  337;  Varble  v.  Bigley,  14  Bush  (Ky  ),  698.  And  see  ante,  25o,  as  to 
innkeepers. 

2  Cro.  Jac.  3:50  ;  "  the  first  case  of  this  kind,"  said  Lord  Holt,  "  to  be 
found  in  our  books."  12  Mod.  480.  And  see  3  Story  (U.  S.),  349;  Elliott 
V.  Rossell,  10  Johns.  (N.  Y.)  1  ;  §  338. 

8  See  §  339;  Doct.  &  Stud.  Dial.  2,  c.  38;  observe  too  in  Henry  IV., 
Act  n,  Scene  J,  the  humble  state  of  Shakespeare's  Rochester  carriers. 

4  See  Hogarth's  "Harlot's  Progress,"  Plate L  Under  Stat.  12  Car.  H., 
the  liberty  of  forwarding  letters  was  taken  away,  and  then  the  land  carrier 
had  to  confine  his  business  mostly  to  the  heavier  teaming.    See  12  Mod  482. 


CARRIERS  IN  GENERAL  148 

and  Lord  Holt,  —  a  legal  theme  which  inspired  neither  of 
these  nor  the  later  Blackstone.^  Yet,  long  before  this,  water 
transportation  had  attained  high  renown.  Already  had  the 
Mediterranean  powers,  the  Dutch  Republic,  Great  Britain,  in 
turn,  come  to  ascribe  the  most  copious  source  of  material  pros- 
perity to  grasping  the  cariying  trade  of  the  ocean ;  and  to  the 
wars  which  have  been  fostered  for  the  sake  of  gaining  and 
keeping  such  a  prize,  the  United  States,  in  later  times,  have 
been  no  strangers. 

268.  But,  meantime,  our  land  carrier  has  made  progress. 
During  the  eighteenth  century,  and  the  earlier  part  of  the 
nineteenth,  the  stage-coach,  which  had  been  known  in  and 
about  London  since  1650,  greatly  extended  its  facilities  ;  post- 
roads  were  multiplied;  and  the  local  and  inland  business, 
for  conveying  both  passengers  and  goods,  became,  in  England 
and  America,  orgaiiized  on  a  much  more  liberal  scale  than 
before,  so  as  to  meet  the  increasing  demand  for  extensive 
transit.  But,  until  horse-power  began  to  be  superseded  for 
long  distances,  about  1840,  by  steam,  the  capacity  of  the  car- 
rier car  was  trifling  as  compared  with  vessels;  and  the  pro- 
moters of  inland  traffic  devoted  their  enterprise  to  canals  and 
a  connected  water  highway.  If  expanded  vapor  has  wrought 
wonders  in  navigation  since  this  century  opened,  the  revolu- 
tion it  has  accomplished  during  a  much  shorter  period,  in 
method  and  the  bulk  of  land  carriage,  lias  been  overwhelming. 
Capacious  cars  are  yoked  together  in  a  long  line,  and  whole 
cargoes  of  grain  and  produce  are  now  rapidly  drawn  to  the 
seaboard  from  some  far  inland  point.  Hence,  if  the  past 
should  serve  as  a  criterion  of  the  future,  those  now  living  may 
yet  see  some  new  and  more  convenient  means  of  transit  intro- 
duced, while  it  is  certain  that  the  interchange  of  the  world's 
commodities  will  grow,  rather  than  diminish,  as  civilization 
advances  its  steps.^ 

1  Land  carriers  are  but  lightly  touched  upon  in  3  Co.  Litt.  89  a  ;  1  Co. 
Inst.  89  a  ;  and  that  in  language  showing  a  misapprehension.  Blackstone, 
too,  treats  the  pursuit  slightingly,  as  though,  in  his  day,  something 
inferior.     2  Bl.  Com.  453 ;  3  ib.  165. 

2  §340. 


CHAPTER  11. 

'  NATURE   OF   THE  COMMON  CARRIER  RELATION. 

269.  Our  preliminary  inquiry  is  whether  the  bailee  under- 
took to  transport  as  a  common  carrier ;  and  if.  so,  then  his  trans- 
portation undertaking  must  have  been  Op/  for  reward,  and 
(^  in  pursuance  of  some  carriage  vocation  wliich  he  exercises. 
For,  though  any  hired  bailee  might  expressly  contract  to  be 
unduly  bounden,/the  common  carrier  is  one  who,  by  virtue 
of  his  calling,  undei^akes,  on  recompense,  to  transport  per- 
sonal property  from  one  place  to  a^pther  for  all  such  as  may 
choose  to  employ  and  reward  h.\\\\}]) 

270.  The  transportation  in  question  must  have  been  for  reward, 
for  if  it  were  plainly  a  gratuitous  undertaking,  though  per- 
formed by  one  who  usually  charges  for  such  service,  this  is 
nothing  more  than  a  gratuitous  bailment  for  the  bailee's  sole 
benefit.^  But  liability  as  a  common  carrier  does  not  necessi- 
tate the  prepayment  of  carriage  charges,  provided  only  the" 
carrier  has  a  right  to  demand  a  recompense ;  nor  is  one  any 
the  less  a  common  carrier  because  the  stipulated  reward  is 
other  than  money,  or  because  the  rate  was  not  fixed  in  ad- 
vance, or  because  the  undertaking  may  have  turned  out  dis- 
advantageous to  him; /for  it  suffices  that  the  undertaking 
itself  was  expressly,  or  by  implication,  an  undertaking  for 
reward.^ 

1  §  342;  ante,  258 ;  Dwight  r.  Brewster,  1  Pick.  50,  per  Parker,  C.  J.; 
Sheldon  V.  Robmson,  7  N.  H.  157. 

2  §  343;  Fay  v.  Steamer  New  World,  1  Cal.  348;  3  Barb.  (N.  Y.)  388; 
Michigan  Central  R.  v.  Carrow,  73  111.  348 ;  Flint  R.  v.  Weir,  37  Mich. 
Ill  ;  ante,  263. 

8  Indianapolis  R.  v.  Ilerndon,  81  111.  143;  Knox  v.  Rives,  14  Ala. 
249;  Hall  v.  Cheney,  36  N.  H.  26.  See  as  to  returning  empty  bags  for 
customers,  23  Wis.  387.  The  presumption  favors  an  intent  to  charge  in 
pursuance  of  one's  business;  yet  this  presumption  maybe  repelled  by  the 


NATURE  OF  THE  COMMON   CARRIER  RELATION         145 

271.  The  transportation  must  have  been  in  pursuance  of  some 
carriage  vocation  which  the  carrier  exercises.  And  here  our 
main  object  is,  to  distinguish  one  sort  of  hired  bailee  from 
another,  with  a  view  to  determining  whether  the  bailment 
responsibility  in  a  particular  instance  shall  be  pronounced 
ordinary  or  extraordinary.  A  pertinent  statement  of  Judge 
Story  is  constantly  cited  in  the  books :  namely,  that  to  bring 
a  person  within  the  description  of  a  common  carrier,  he  must 
exercise  the  business  "  as  a  public  employment ;  he  must  un- 
dertake to  carry  goods  for  persons  generally  ;  and  he  must  hold 
himself  out  as  ready  to  engage  in  the  transportation  of  goods 
for  hire  as  a  business,  not  as  a  casual  occupation  pro  hac  vicey  ^ 
This  holding  out,  then,  to  the  public,  that  one  is  ready  to 
carry  things  generally,  in  puisuance  of  some  regular  calling, 
appears  the  prime  element  that  distinguishes  the  common 
carrier  from  a  mere  private  carrier  for  hire.  And  circum- 
stances must  determine  such  an  issue,  as  in  the  case  of  an 
innkeeper.2  Hence  proof  that  one  has,  in  the  course  of  his 
vocation,  for  a  long  period  carried  for  such  as  chose  to  employ 
him  will  readily  charge  him  as  a  common  carrier,  and  the 
carrier's  sign,  his  business  cards,  advertisements,  and  cir- 
culars, may,  any  or  all,  be  material  in  such  an  issue.^  Where 
an  individual's  acts  or  conduct,  his  methods  of  business,  and 
the  propositions  he  holds  out  for  conducting  it,  lead  naturally 
to  the  inference  that  he  exercises,  or  offers  to  exercise,  the 
vocation   of   common  carrier,  they    who   intrust   goods   and 

facts  shown.     See  102  Ala.  409;  64  Mo.  47;  111  Mass.  45.     And  in  such 
a  case  the  carrier's  liability  is  for  gross  negligence  only. 

If  a  carrier's  servant,  without  knowledge  or  direction  of  the  principal, 
undertakes  to  carry  things  gratuitously  outside  the  scope  of  employment, 
he  does  not  bind  the  principal  as  common  carrier  for  their  safe  delivery. 
2  Story  (U.  S.),  16  ;   Hall  v.  Cheney,  36  N.  H.  26. 

1  Story  Bailm.  §  495  ;  2  Story  (U.  S.),  32;  Satterlee  v.  Groat,  1  Wend. 
272;  2  Ga.  349;  Samms  v.  Stewart,  20  Ohio,  71;  Elkins  i'.  Boston  & 
Maine  R  ,  3  Fost.  (N.  II.)  273,  280.  But  see  our  definition,  ante,  269. 
And  of.  29  Ala.  263;  15  Ind.  345;  22  N.  J.  L.  372;  32  Penu.  St.  208. 

2  Ante,  233. 

3  §  345  ;  3  Car.  &  K.  61 ;  6  Bosw.  (N.  Y.)  235.  Dubious  expressions 
are  not  to  be  thus  construed.     Scaife  v.  Farrant,  L.  R.  10  Ex,  358. 

10 


146  THE   LAW   OF   BAILMENTS 

chattels  to  him  upon    the    confidence  that  he  is  a  common 
carrier  can  hokl  him  responsible  accordingly.^ 

272.  In  case  the  transporting  party  has  carried  but  once  or 
twice  in  this  manner,  or  for  one  or  two  particular  patrons, 
difficulty  may  arise ;  though  such  difficulties  are  rather  of 
proof  than  of  principle.  The  exceptional  or  partial  use  of 
one's  vehicle  on  some  occasion  may  not  charge  him  except 
as  a  private  carrier  or  bailee  of  the  third  class.^  But  a  com- 
mon carrier  is  rightfully  made  responsible  on  his  general 
undertaking  to  carry  things  for  reward,  even  though  the  trip 
be  his  first;  nay,  though  but  one  trip  at  all  were  contem- 
plated ;  since  it  is  the  public  carriage  intention  which  is 
material  to  such  an  issue,  rather  than  the  longer  or  shorter 
fulfilment  of  that  intention.^  On  the  other  hand,  a  party 
once  a  common  carrier,  who  has  clearly  discontinued  such 
business,  is  but  an  ordinary  bailee  towards  a  stranger  for 
whom  he  casually  transports  property  at  a  much  later  date  ;  ^ 
though,  like  a  retiring  partner,  one  who  has  been  lately  en- 
gaged in  a  certain  business,  from  which  he  withdraws,  must 
take  heed  how  he  permits  himself  to  be  held  out  to  old  cus- 
tomers who  seek  him. 

273.  Casual  or  auxiliary  occupation  is  here  possible  ;  SO  that 
whether  the  business  of  common  carrier  be  principal  or  sub- 
ordinate, leading  or  incidental,  usual  or  only  at  periods,  the 
law  subjects  it,  while  it  is  being  pursued,  to  all  the  conse- 
quences of  exercising  a  public  profession.^  But  where  one 
of  a  different  vocation  assumes  towards  those  who  may  choose 
to  employ  him  the  business  of  carrier  only  at  particular 
seasons  of  the  year,  it  does  not  follow  that  at  other  seasons, 
and  under  exceptional  circumstances,  his  casual  transporta- 

1  §  345. 

2  §  346.    See  3G  La.  An.  100  ;  Allen  v.  Sackrider.  37  N.  Y.  141. 

8  Fuller  V.  Bradley,  25  Penn.  St.  120 ;  Steele  v.  McTyer,  31  Ala.  667. 

*  31  Ala.  667  ;  Satterlee  v.  Groat,  1  Wend.  272;  Harrison  v.  Roy, 
39  Miss.  396. 

6  Hariison  v.  Roy,  39  Miss.  396  ;  Chevallier  r.  Straham.  2  Tex.  11.5: 
Moss  V.  Bettis,  4  Ileisk.  (Tenn.)  661.  ~Butsee  2  Ga.  349;  1  Pick.  (Mass.) 
50. 


NATURE  OF  THE  COMMON  CARRIER  RELATION    147 

tion  of  goods  would  render  him  liable  therefor,  as  a  common 
carrier.^  On  the  other  hand,  one  may  be  a  common  carrier 
and  at  the  same  time  conduct  a  different  pursuit;  nor  does  it 
follow  tliat  because  he  exercises  a  public  vocation  in  one 
sense  he  exercises  it  in  another  and  all  senses.^ 

274.  Carriage  regularly  between  fixed  points  is  not  essential : 
though  a  certain  area  is  usual  in  such  vocations.  One  may 
even  be  a  common  carrier  who  has  no  fixed  termini,  but 
leaves  the  course  of  transportation  in  each  case  to  depend 
upon  his  customer's  wishes.^  So,  should  one  who  habitually 
uses  his  wagon  or  barge  to  convey  his  private  produce  to 
mai'ket,  and  then  loads  up  with  supplies  to  bring  home  for 
such  of  his  neighbors  as  will  pay  him  for  the  service,  be 
adjudged  a  common  carrier,  in  respect  of  the  return  trips.* 

275.  Either  a  professed  vocation  or  a  special  undertaking 
should  appear  in  order  to  charge  the  person  as  a  common 
carrier  who  conducts  the  transportation  in  question.  But  no 
written  memorandum  is  needful  to  prove  such  a  special  un- 
dertaking or  vocation ;  for  the  proof  may  be  oral  and  evinced 
by  one's  conduct  and  circumstances.^  The  special  agreement 
to  transport  gratuitously  may  place  one  who  is  usually  a 
public  carrier  on  the  footing  of  private  carrier  and  gratuitous 
bailee  in  a  particular  instance  ;  and  so,  too,  may  a  special  un- 
dertaking (such  as  we  seldom  find)  place  a  private  carrier  or 
ordinary  bailee  on  the  footing  of  public  carrier,  with  corre- 

1  Ilavnie  v.  Baylor,  18  Tex.  498^ 

2  TliuH,  a  common  carrier,  who  contracts  with  government  to  carry  the 
mails,  exercises  no  public  vocation  as  postmaster  or  common  carrier 
towards  the  sender  of  a  letter  by  the  mail.  Central  R.  v.  Lampley,  76 
Ala.  357.     And  see  §  347. 

8  Liver  Alkali  Co.  v.  Johnson,  L.  R.  7  Ex.  267;  L.  R.  9  Ex.  .338.  And 
see  §  348  ;  Pennewill  v.  Cullen,  5  Harr.  SoS.  So  as  to  connecting  carriers 
aeepoxl,  c.  9;  8  M.  &  VV.  421. 

*  Harrison  i\  Roy,  39  Miss.  396.  One  may  be  a  common  carrier, 
whether  transporting  between  different  parts  of  one  town,  or  from  one 
town  to  another,  or  from  a  place  in  one  state  or  national  jurisdiction  to  a 
place  in  another.     §  348. 

5  §  349;  2  Harr.  48  ;  Fish  v.  Chapman,  2  Ga.  319;  Harrison  v.  Roy, 
39  Miss.  396;  Varble  i:  Bigley,  14  Bush  (Ky.),  698. 


148  THE   LAW   OF  BAILMENTS 

spending  risks  and  responsibility.  But  aside  from  such  special 
undertaking,  the  main  elements  which  determine  the  issue  of 
common  carrier  are  the  two  which  we  have  described  at  length. 
And  in  pursuits  for  hire  such  as  we  are  now  to  distinguish 
from  that  of  common  carrier,  the  standard  applicable  is  that 
of  ordinary  care  and  diligence,  whether  under  the  rule  of  bail- 
ments or  the  broader  one  of  service  for  hire.^ 

276.  Let  us  inquire  ■what  pursuits  by  land  or  by  water  are 
most  commonly  classed  with  common  carriers.  As  to  occu- 
pations by  land.  Wagoners  and  teamsters,  whose  business  it 
is  to  carry  on  hire  goods  and  chattels  from  one  locality  to 
another,  stand  earliest  among  the  recognized  connnon  carriers 
of  our  law,  after  the  loaded  horseman ;  ^  and  to  these  may  be 
added  common  porters,  riders,  draymen,  truckmen,  and  cart- 
men  ;  it  mattering  not  whether  such  employment  be  carried 
on  from  town  to  town,  or  from  one  part  of  a  town  to  another.^ 
A  city  express  engaged  in  transporting  parcels  or  the  trunks 
of  travellers  within  the  city  limits,  and  local  expresses,  so 
called,  whose  business  is  carried  on  from  one  town  to  another 
in  special  conveyances,  after  the  fashion  of  the  ancient  wagoner, 
fall  alike  under  the  denomination  of  common  carriers.* 

277.  But  our  modern  express,  -which  for-wards  for  hire  over 
transportation  routes  by  means  of  conveyances  otherwise  con- 
trolled, presents  a  somewhat  novel  aspect.  The  American 
pioneer  in  that  business  is  said  to  have  k)urneyed  in  person, 
by  steamboat  and  rail  car,  between  New  York  and  Boston, 
with  all  his  customers'  valuables  contained  in  a  hand-satchel ; 
but  the  pursuit  thus  humbly  originating  about  1839  now 
commands  immense  capital,  and  lays  the  civilized  world  under 
contribution.  True  is  it  that  such  a  pursuit  somewhat  resem- 
bles the  earlier  one  of  "  forwarding  merchant,"  which  it  has 
largely  superseded;  and  forwarding  merchants  were   always 

1  See  ante,   258 ;   Allis  v.  Voight,  90  Mich.  125. 

2  §  350;  1  Salk.  249  ;  Gordon  v.  Hutchinson,  1  W.  &  S.  (Penn.)  285; 
ante,  2G7. 

*  §  350;   Robertson  v.  Kennedy,  2  Dana  (Ky.),  431;  ante,  274. 
4  Verner  v.  Sweitzer,  32  Penn.  St.  208  ;  2"  Bosw.  (N.  Y.)  ,589  ;  Par- 
melee  V.  Lowitz,  74  111.  110.     Cf.  Scaife  v.  Farrant,  L.  R.  10  Ex.  358. 


NATURE   OF   THE   COMMON   CARRIER   RELATION         149 

adjudged  not  to  be  liable  at  our  law  as  common  carriers,  but 
only  for  ordinary  diligence.^  Hence  an  early  hesitation  in  the 
courts  about  treating  the  express  carrier  differentl}^  But 
forwarders,  besides  participating  in  no  wise  in  the  control  of 
the  carriage,  were  only  a  sort  of  commission  merchant,  em- 
ployed mainly  in  warehousing,  or  for  buying  and  selling  the 
goods  they  forwarded ;  and,  indeed,  one  who  simply  sells  to 
a  distant  customer  becomes  almost  invariably'  a  forwarder  of 
merchandise  to  him  in  the  same  sense.^  The  express,  on  the 
other  hand,  makes  a  through  transportation  its  main  concern  ; 
it  forwards,  as  a  rule,  on  lines  of  its  own  choice,  under  the 
continuous  supervision  of  its  own  agents,  and  in  pursuance 
of  private  arrangements  with  the  transporters,  of  which  its 
own  customers  are  not  cognizant ;  it  solicits  business  from  the 
public,  and  its  service  is  sought  mainly  because  of  the  peculiar 
assurance  thus  afforded,  that  property  which,  because  of  its 
nature,  its  value,  or  the  peculiar  hazards  of  the  journey,  re- 
quires personal  watchfulness  throughout  the  transit,  shall 
reach  its  destination  in  safety.  Accordingly,  in  this  country, 
it  has  at  length  become  clearly  settled  tliat  expresses  are 
liable,  not  as  forwarders,  but  as  common  carriers  ;  nor  can 
this  doctrine  yield  to  their  use  of  such  misleading  titles  as 
"  transportation  company,"  "  forwarder,"  and  the  like,  for 
designating  wliat,  in  fact,  is  a  responsible  express  business, 
conducted  after  the  companj^'s  own  judgment.^ 

1  Maybin  v.  South  Carolina  R.,  8  Rich.  (S.  C.)  240;  Northern  R.  v. 
Fitchburg  R.,  6  Allen  (Mass.),  254;  Stannard  ;;.  Prince,  G4  N.  Y.  300. 

^  §  351;  19  Barb.  (N.  Y.)  577.  Any  carrier  for  his  own  route  may 
undertake  to  become  the  mere  forwarder  beyond  his  terminus.  As  to  the 
duty  of  a  forwarder,  see  Proctor  v.  Eastern  R.,  105  Mass.  512;  Stannard 
V.  Prince,  64  N.  Y.  300. 

^  Bank  of  Kentucky  v.  Adams  Express  Co.,  93  U.  S.  174;  Southern 
Express  Co.  v.  Newby,  36  Ga.  635;  Sweet  v.  Barney,  23  N.  Y.  335;  28 
Oh?o  St.  144;  15  Minn.  270;  29  111.  392;  97  Mass.  "l24 ;  86  Tenn.  392. 
And  see  §  351. 

Generally  speaking,  one  who  employs  an  express  will  sue  the  express 
carrier  for  a  loss,  rather  than  the  transporting  company  who  did  the  mis- 
chief as  agent  of  the  express.  Boscowitz  v.  Adams  Express  Co.,  93  111. 
523. 


150  THE   LAW  OF  BAILMENTS 

278.  As  to  carriers  of  passengers  and  baggage,  these  may  or 
may  not  become  likewise  tlie  common  carriers  of  goods  and 
chattels.  Our  modern  railways,  unlike  the  stage-coacdi  lines 
they  so  widely  displace,  have  constantly  assumed,  with  their 
immense  inland  facilities,  to  carry  over  their  route  both  pas- 
sengers and  general  freight.  Railways,  in  short,  are  common 
carriers  both  of  goods  and  chattels  received  as  freight,  and  of 
the  baggage  of  their  passengers ;  and  they  are,  moreover,  pas- 
senger carriers.^  Yet  railway  freight  trains  and  passenger 
trains  are  commonly  run  separately,  and  on  different  time- 
tables ;  freight  depots  and  passenger  depots  are  generally  kept 
apart ;  freight  and  passenger  rate  schedules  are  separately 
drawn  up  ;  hence  the  inquiry  ma}^  become  pertinent,  whether 
the  fact  of  receiving  mere  freight  on  rare  occasions  upon 
passenger  trains,  apart  from  the  baggage  and  effects  of  persons 
actually  conveyed,  will  render  the  railway  liable  to  such  bail- 
ors as  a  common  carrier.  Such  an  issue  must  depend  upon 
the  particular  circumstances  of  the  case.  Even  a  street  rail- 
way, whose  regular  occupation  is  that  of  transporting  passen- 
gers, and  that  too  without  any  baggage,  may  be  proven  a 
common  carrier  of  merchandise  by  the  habitual  conveyance 
thereof  on  hire  to  acconnnodate  the  public.^  But  stage-coaches, 
omnibuses,  hacks,  and  street  railways  are  prima  facie  passenger 
carriers  only,  and  not  held  out  as  common  carriers  of  goods 
for  the  general  public,  however  it  may  be  as  to  any  baggage 
incidental  to  the  passenger  service.^ 

279.  As   to   miscellaneous   land   pursuits  the  Special  business 

1  §  352;  Parker  v.  Great  Western  R.,  7  I\I.  &  G.  253  ;  Camdoii  &  Atn- 
boy  R.  V.  Burke.  13  Wend.  611;  Thomas  v.  Boston  &  Providence  R., 
10  Met.  (Mass.)  472;  Murch  v.  Concord  R.,  9  Fost.  (N.  H.)  9;  Kimball  v. 
Rutland  R.,  26  Vt.  217  ;  Hannibal  R.  r.  Swift,  12  Wall.  262.  For  a  pas- 
senger carrier's  liability  as  to  baggage,  see  post,  Part  VII. 

2  Levi  V.  Lynn,  &c.  Horse  R.,  11  Allen  (Mass.),  .300. 

A  railway  may  be  a  conimon  carrier  of  goods,  even  though  its  charter 
does  not  style  it  thus  ;  for  the  business  itself  sufficiently  imports  such  an 
occupation.     Chicago  R.  v.  Thompson,  19  111.  578. 

8  §  352;  Merwin  v.  Butler,  17  Conn.  138;  Parmelee  v.  iNlcNulty,  19  lU. 
556;  74  111.  IIG;  Verner  y.  Sweitzer,  32  Penn.  St.  208;  Powell  «;.  Mills, 
30  Miss.  231. 


I 


]s:ature  of  the  common  carrier  relation      151 

of  supplying  sleeping-cars  or  drawing-room  cars  to  railway 
trains,  for  travellers  who  may  choose  to  pay  for  such  extra 
accommodations,  is  held  no  common-carrier  pursuit,  in  the 
sense  of  imposing  an  exceptional  bailment  responsibility  for 
what  the  occupant  may  have  about  him.^  In  some  aspects 
of  his  business,  however,  a  sleeping-car  proprietor  must  con- 
duct himself  as  one  who  exercises  a  public  vocation ;  ^  and 
at  all  events  he  must  exercise  ordinary  care  and  diligence 
within  the  scope  of  his  trust,  like  any  other  bailee  for  hire.^ 
A  bridge  or  turnpike  company,  which  furnishes  to  respon- 
sible carriers  a  highway  with  switching  or  other  like  facilities, 
is  not  by  virtue  of  such  business  a  common  carrier.*  Nor  is 
a  stockyard  company  or  other  mere  agistor  or  warehouseman 
for  a  carrier.^ 

280.  As  to  occupations  by  water.  A  bargeman,  hoyman, 
lighterman,  or  boatman,  whose  carriage  of  goods  by  water  is 
near  shore,  has  long  been  adjudged  a  common  carrier.^  To 
ferrymen,  or  ferry  companies,  and  those  plying  canal  boats,'^ 

^  §  353.  This  seems  to  be,  however,  because  the  responsible  trans- 
porter of  passengers  and  baggage  is  the  railway  company.  Pullman 
Palace  Car  r.  Smith,  73  III.  360;  1  Flip.  C.  C.  (U.  S.)  500;  67  How. 
(X.  Y.)  Pr.  154.  Cf.  1  Sheldon  (X.  Y.  Super.),  457.  Xor  is  an  inn- 
keeper's liability  imputed.     73  111.  360. 

2  Thus,  he  cannot  select  his  patrons  at  pleasure,  but  must  treat  all  the 
public  alike.     Nevin  v.  Pullman  Palace  Car  Co.,  106  111.  222 ;  ante,  265. 

*  Kinsley  r.  Lake  Shore  R.,  125  Mass.  54 ;  Woodruff  Co.  v.  Diehl, 
84  Ind.  474;  1  Fhp.  C.  C.  (U.  S.)  500;  28  Xeb.  39:  93  Tenn.  53;  Pull- 
man Palace  Car  v-  INIartin,  95  Ga.  314.  He  should  look  after  property 
casually  left  in  the  car.  95  Ga.  810.  The  sleepjing-car  company  should 
not  only  furnish  a  berth  at  night,  but  keep  a  competent  watch,  exclude 
unauthorized  persons  from  the  car,  and  take  reasonable  care  towards 
preventing  thefts  and  loss  by  its  own  servants  or  otherwise,     lb. 

That  the  railroad  company  cannot  evade  its  own  duty  as  responsible 
transporter,  by  placing  blame  upon  the  sleeping-car  proprietor,  see  Penn- 
sylvania Co.  V.  Roy,  102  U.  S.  451 ;  Part  VII.,  post. 

4  Kentucky  P>ridge  Co.  v.  Louisville  R.,  37  Fed.  (U.  S.)  567. 

^  Delaware  R.  v.  Stock  Yard  Co.,  45  X.  J.  Eq.  50. 

^  §  354;  Cro.  Jac.  ;^30 ;  1  ]\Iod.  85;  Liver  Alkali  Co.  v.  Johnson, 
L.  R.  7  Ex,  267;  (appeal)  L.  R.  9  Ex.  338;  Allen  v.  Sewall,  2  Wend. 
327;  Moss  r.  Bettis,  4  Heisk.  (Tenn.)  661. 

'  Willoughby  V.  Ilorridge,  12  C.  B.  742;  Smith  v.  Seward,  3  Penn.  St. 


152  THE  LAW  OF  BAILMENTS 

the  same  doctrine  should  apply ;  the  ferries  of  this  day,  how- 
ever, usually  taking  loaded  teams  on  board  with  their  drivers, 
whose  partial  control  much  affects  the  issue  of  responsibility, 
while  canal  boats  are  rather  employed  in  conveying  cattle 
and  inanimate  freight  placed  under  the  carrier's  sole  charge. 
One  who  has  a  raft  or  flat-boat  suitably  employed  may  be  a 
common  carrier,  even  though  intending  to  go  down  the  river 
but  once,  and  then  break  up  his  transport  and  sell  it  for 
lumber.!  Steamboats,  which  have  from  their  first  introduc- 
tion on  the  Hudson  River,  in  the  early  part  of  this  century, 
transacted  a  general  freight  and  passenger  business,  are  estab- 
lished, both  in  England  and  America,  by  a  long  series  of 
decisions,  to  be  common  carriers,  both  for  the  baggage  of 
passengers,  and  as  to  goods  which  are  shipped  by  general 
consignors.^ 

281.  But  here,  as  elsewhere,  the  employment  to  be  designated 
as  common  carriage  is  that  held  out  for  conveying  personal 
property  for  all  who  may  pay  for  the  particular  service.  A 
canal  company  which  simply  allows  the  use  of  its  water-high- 
way to  the  boats  of  customers,  who  pay  tolls,  is  not  a  com- 
mon carrier.^  For  it  is  the  control  of  the  transporting  vehicle, 
or,  at  least,  participation  in  the  transportation  performance 
itself,  which  gives  to  one  the  status  of  carrier ;  and  his  duty 
must  be  not  passive,  but  active,  as  concerns  the  goods. 
Neither  is  a  tow-boat  usually  taken  to  be  a  common  carrier, 
though  in  such  a  case  the  border  line  runs  very  close ;  ^  since 

342;  Pomeroy  v.  Donaldson,  5  Mo.  36;  Wilson  v.  Hamilton,  4  Ohio  St. 
722;  Powell  v.  Mills,  37  Miss.  691;  Hall  v.  Renfro,  3  Met.  (Ky.)  51; 
Lewis  V.  Smith,  107  Mass.  334 ;  26  Ark.  3 ;  Self  v.  Duim,  42  Ga.  528 ; 
36  N.  Y.  312;  Wyckoff  v.  Queens  County  Ferry  Co.,  52  N.  Y.  32  ;  De 
Mott  V.  Laraway,  14  Wend.  225;  3  Vt.  92. 

1  Steele  v.  McTyer,  31  Ala.  667  (a  mode  of  water-carriage  formerly 
quite  in  vogue  on  the  ^Mississippi  and  its  tributaries). 

2  §  354 ;  Siordet  v.  Hall,  4  Bing.  607  ;  Allen  r.  Sewall,  2  Wend.  327 ; 
2  Suran.  (U.  S.)  221  ;  2  Watts  (Penn.),  443;  Hale  v.  New  Jersey  Steam 
Nav.  Co.,  15  Conn.  539;  Bowman  v.  Hilton,  11  Ohio,  303;  Bennett  v. 
Filyaw,  1  Fla.  403. 

8  §  354;  Beckwith  v.  Frisbie,  32  Vt.  559;  10  Bosw.  (N.  Y.)  180. 

*  §  354  ;  Transportation  Line  v.  Hope,  95  U.  S.  297 ;  13  Wend.  387; 


NATURE  OF  THE  COMMON  CARRIER  RELATION    153 

here  the  legal  responsibility  imposed  is  that  of  exercising 
ordinary  care,  dihgence,  and  skill  in  performing  a  peculiar 
service  which  consists  in  drawing,  pulling,  tugging,  but  not 
carrying,  certain  vessels  with  their  cargoes,  of  which  other 
parties  have  the  active  control.  Nor  is  log-driving  con- 
sidered a  common-carriage  pursuit.^ 

282.  Between  carriage  on  inland  waters  and  ocean  carriage, 
no  fundamental  distinction  in  this  respect  avails  in  modern 
times.  And  they  who,  by  a  ship  or  vessel,  whether  propelled 
by  steam  or  wind,  carry  goods,  chattels,  and  merchandise,  the 
same  being  conveyed  as  freight  under  their  general  under- 
taking to  perform  such  carriage  for  the  public,  shall  be  held 
answerable  all  the  same,  Avhether  the  transportation  be  on 
inland  waters,  coastwise,  or  by  the  high  seas.^ 

283.  In  all  of  the  pursuits  by  land  or  w^ater  we  have  just 
enumerated,  the  rights  and  responsibilities  of  the  common- 
carriage  relation  attach  to  parties  having  possession,  control, 
and  authority  in  the  bailment  performance ;  that  is,  to  the 
real  and  responsible  bailee  and  transporter.  It  is  not  the 
mere  wagoner  or  boatman,  the  railway  conductor,  engineer, 
or  navigator,  who  incurs  the  risks  of  a  common  carrier,  but 
rather  the  permanent  or  temporary  proprietor  of  the  vehicle, 
with  its  contents,  the  transporting  party  in  charge  of  the 
goods,  the  principal  in  the  business  for  the  time  being ;  except 
that  any  one  accepting  goods  for  transit  for  an  undisclosed 
principal  renders  himself  personally  hable  to  customers  in 
consequence.  Our  common  canier  may  be  an  individual,  a 
partnership,  or  a  company ;  and  agents,  officers,  and  employes 

4  Dutch.  (X.  J.)  180;  6  Cal.  462;  Varble  v.  Bigley,  14  Bush  (Ky.),  698; 
Hays  V.  Miller,  77  Penn.  St.  238.  Cf.  distinction  drawn  as  to  the 
method  of  employing  the  tow-boat  in  Bussey  v.  INIiss.  Valley  Trans.  Co., 
24  La.  Ann.  165.' 

1  Mann  v.  White  River  Log.  Co.,  46  Mich.  38.  This  business  consists 
in  running,  rafting,  and  booming  logs  down  stream.  And  see,  as  to  the 
business  of  a  mud-scow,  under  peculiar  circumstances,  5  Fed.  (U.  S.)  634. 
Cf.  26  Minn.  243. 

2  §  365;  Nugent  r.  Smith,  1  C.  P.  D.  19,  423;  Boyce  v.  Anderson,  2 
Pet.  (U.  S.)  150;  3  Esp.  127 ;  6  Wend.  (N.  Y.)  335. 


154  THE  LAW  OF  BAILMENTS 

may  have  borne  active  part  in  the  baihiient  performance,  for 
which,  in  the  eye  of  the  law,  those  they  represent  are  alone 
chargeable  to  tlie  bailor  or  owner,  unless  they  themselves 
transcend  the  actual  and  manifest  scope  of  their  authority.^ 

284.  Agents  in  such  performance  may  make  themselves 
solely  responsible  by  acts  of  which  the  responsible  trans- 
porter, or  principal,  was  not  cognizant,  and  which  were  out- 
side the  scope  of  a  permitted  authority.^  But,  in  general,  no 
private  understanding  between  a  carrier  and  his  own  subordi- 
nate, whereby  the  latter  is  to  receive  the  sole  compensation 
for  carrjdng  certain  things,  can  avail  against  a  bailor  for  re- 
ward who  suffers  loss,  unless  the  bailor  is  shown  to  have  been 
aware  of  this  arrangement,  and  to  have  bailed  his  property  to 
the  agent  exclusively  on  the  faith  of  it.^ 

284  a.  The  test  here  is  actual  responsible  employment  in  the 
carriage,  and  not  mere  ownership.  Hence  the  lessee  of  a 
ferry,  or  the  charterer  of  a  ship  should  respond  to  a  customer 
who  has  trusted  him  with  "goods  in  that  capacity.*  A  trans- 
portation company  may,  as  to  the  government  which  employs 
its  service  in  carrying  the  mails,  incur  the  liabilities  of  a  com- 
mon carrier  ;  but  in  such  a  case  the  responsible  transporter 
as  concerns  the  general  public  is  the  United  States,  and  to  the 
individual  sender  of  mail  matter  such  an  agent  is  not  liable 
directly  for  loss.^ 

285.  The  letting  or  chartering  of  a  railway  car  or  an  entire 
train  on  a  railway  may  give  rise  to  similar  differences  of  legal 
construction,  though  the  law  of  shipping  finds  here  no  exact 
parallel.     At  all  events,  for  an  injury  caused  by  his  own  bad 

1  §  356. 

2  §  357;  7  N.  II.  157;  Levi  t'.  Lynn  Horse  R.,  11  Allen  (Mass.),  300. 

8  §  357;  Allen  v.  Sewall,  2  Wend.  (N.  Y.)  327;  s.  c.  6  Wend.  335;  2 
Story  (U.  S.),  49.  Such  distinctions  are  fundamental  in  the  law  of 
agency.  And  see  Evans  v.  Atlanta  R.,  56  Ga.  498;  O'Neill  t'.  Keokuk 
R.,  45  Iowa,  54G  ;  44  Wis.  342;  §  358. 

*  §  359;  17  Barb.  (N.  Y.)  191 ;  Claypool  v.  :McAllister,  20  111.  504.  See 
Sandeman  v.  Scurr,  L.  R.  2  Q.  B.  86.  But  owners  of  a  vessel  may  be 
carriers  on  general  freight.     129  U.  S.  397. 

^  See  Central  R.  v.  Lampley,  76  Ala.  357.  But  here  is  the  case  of  a 
government  agency.     Supi-a,  271. 


NATURE  OF  THE  COMMON  CARRIER  RELATION    155 

loading,  the  consignor  of  freight  cannot  hold  the  railway  com- 
pany responsible  as  insurer,  nor  cJiarge  it  with  losses  against 
which  the  contract  provided,  and  which  impute  neither  fraud 
nor  mismanagement  so  far  as  the  carrier's  own  participation 
in  the  bailment  performance  extended. ^  In  shipping,  how- 
ever, the  cliarterer  for  a  voyage  once  finding  the  vessel  stanch, 
tight,  and  serviceable  for  his  purpose,  the  whole  control  of  the 
transportation  becomes  his,  save  so  far  as  the  owner  may  have 
furnished  his  own  officers  and  crew ;  while  the  charterer  of  a 
railway  car,  or  even  of  a  whole  train,  must  trust  largely  to  the 
company  itself,  to  the  condition  of  its  road,  the  management 
of  other  trains,  and,  in  sliort,  to  the  discretion  and  skill  of 
numerous  agents  over  whom  tlie  company,  and  not  the  char- 
terer, exercises  supervision.  The  resemblance  borne  by  such 
a  land  carriage  to  a  ship  put  under  charter-party  is,  perhaps, 
closer  where  the  entire  business  of  one  railway  company,  with 
its  tracks,  rolling-stock,  equipments,  and  goodwill  become  leased 
for  a  certain  term  to  another  company.  Here,  as  a  rule,  for 
damage  or  loss  occasioned  on  a  railway  whicli  is  run  and  oper- 
ated by  a  lessee  company  in  its  own  name,  and  not  that  of  the 
lessor  corporation,  the  former,  and  not  the  latter,  should  be 
held  responsible.^ 

286.  In  respect  of  all  corporations,  however,  the  fundamen- 
tal restraints,  imposed  b}^  charter  or  general  law,  must  be  duly 
regarded.  Where  one  railway  receives  for  compensation  into 
its  exclusive  control,  and  draws  over  its  own  road,  the  cars  of 
another  company,  it  becomes  strictly  liable  for  damage  done 
to  the  cars  during  such  transit.  But  whether  this  liability 
be  founded  in  an  implied  carrier  relation,  and  not  rather 
deducible  from  the  peculiar  contract  of  employment  itself, 
is  not  clearly  determined  by  the  courts.^     Any  railway  com- 

1  §  360;  East  Tennessee  R.  r.  Wliittle,  27  Ga.  5:55;  Kimball  v.  Rut- 
land R.,  20  Vt.  217. 

2  Pittsburjrh  R.  r.  Hannon,  GO  Tnd.  417;  42  N.  Y.  Super.  225. 

3  §361;  Vermont  R.  v.  Fitchburg  R.,  14  Allen  (iMass.),  462;  New 
Jersey  R.  v.  Pennsylvania  R.,  27  N.  J.  L.  100.  In  both  of  these  cases 
the  court  inclined  to  regard  the  transpoi'ter  as  theoretically  a  common 
carrier.     Cf.  281,  that  towing  is  not  deemed  a  common-carriage  pursuit. 


156  THE   LAW   OF   BAILMENTS 

pany  which  operates  its  own  trains  over  the  road  of  another 
com2)any  is  responsible  as  common  carrier.^  But  instances 
may  arise  where  the  arrangement  for  hauling  another's  cars 
by  one's  motive  power  does  not  involve  the  strict  carrier  rela- 
tion at  all,  but  rather  a  private  and  special  one.^ 

287.  In  the  organization  of  railways,  the  board  of  directors, 
headed  b}'  the  president,  have  commonly  the  managing  func- 
tions of  the  company,  which  are  to  be  exercised  subject  to 
such  fundamental  restraints  as  the  charter,  or  act  of  incorpo- 
ration, and  by-laws  may  have  imposed  upon  them ;  their 
authority  being,  moreover,  a  delegated  one,  and  derived  from 
the  consent  of  the  stockholders.^  But  others  actually  oper- 
ating the  road  might  sometimes  be,  instead,  the  proper  repre- 
sentative managers  of  the  company's  carrier  business;  as,  for 
instance,  receivers  who  operate  a  railroad  under  an  appoint- 
ment from  a  court  of  chancery ;  or  the  trustees  of  mortgage 
bonds  in  actual  possession.*  But  contractors  building  a  rail- 
road are  not  presumed  to  intend  exercising  a  public  employ- 
ment, if,  indeed,  they  have  any  right  to  do  so ;  ^  nor  is  the 
company,  under  such  circumstances,  liable  as  a  common 
carrier.^ 

1  §  361 ;  Eureka  Springs  R.  v.  Timmons,  51  Ark.  4.59.  See  25  Fed. 
(U.  S.)  317. 

As  to  yielding  a  partial  control,  through  stress  of  government,  etc.,  see 
Phelps  V.  Illinois  Central  R.,  9i  111.  54 S ;  Hannibal  R.  v.  Swift,  12  Wall. 
(U.  S.)  262  ;  §  362. 

2  Coup  V.  Wabash  R.,  56  Mich.  Ill,  is  in  point,  where  one's  railway 
engine  was  used  to  draw  a  menagerie  train  of  cars  owned  by  the  exhibi- 
tor. So  might  a  teamster  use  his  horse  to  help  a  fellow-te^amster's  wagon 
up  hill.  And  see  St.  Paul  R.  v.  Minneapolis  R.,  26  Minn.  243,  as  to 
hire  ;   66  Fed.  (U.  S.)  506. 

3  §  363. 

4  Nichols  V.  Smith,  115  Mass.  3.32;  Newell  v.  Smith,  49  Vt.  255 ; 
Sprague  v.  Smith,  29  Vt.  421  ;  44  N.  Y.  Super.  471. 

6  Shoemaker  v.  Kingsbury,  12  Wall.  (U.  S.)  369. 

^  §  363.  Kansas  R.  v.  Fitzsimmons,  18  Kans.  34.  Aliter,  if  the  com- 
pany receives  freight  and  undertakes  its  business  before  the  road  is  com- 
pleted and  while  running  construction  trains,  39  Ark.  487;  23  Ohio  St. 
186.  As  to  a  railway  owned  by  the  government,  see  Peters  i\  Rylands, 
20  Penn.  St.  497.     And  see  39  Ark.  487 ;  23  Ohio  St.  186. 


NATURE  OF  THE  COMMON  CARRIER  RELATION    157 

288.  A  partnership  may  be  created  for  the  carrier  business  as 
well  as  an  agency.^  And  the  present  discussion  takes  a  wider 
range  as  our  modern  carrier  companies  employing  steam  power 
are  brought  into  view  and  continuous  transportation  increases. 
Wliere  two  or  more  railways  or  land  and  water  lines  make 
connecting  agreements  for  their  mutual  convenience  in  effect- 
ing a  through  transportation,  the  law  of  agency  may  supple- 
ment that  of  partnership  so  as  to  establish  the  power  of  one 
company  to  make  a  transportation  contract  which  shall  bind 
both  or  all.^  An  arrangement,  moreover,  between  connecting 
carriers  in  the  nature  of  a  partnership  or  mutual  agency  may 
be  shown  so  as  to  charge  one  for  losses  beyond  his  own  route.** 

289.  As  to  the  kinds  of  property  which  may  be  the  subject 
of  carriage,  to  movables  or  personal  property  is  this  and  every 
bailment  both  logically  and  practically  confined.  But,  except- 
ing that  particular  carriage  pursuits  may  limit  the  dealing  to 
certain  kinds  of  chattels,  whatever  is  capable  of  being  thus 
bailed  at  all  may  be  brought  here  under  the  protection  of 
public  policy.'*  Hence,  a  person  may  be  adjudged  a  common 
carrier  of  money,  whether  in  specie  or  bills,  as  well  as  of  other 
kinds  of  personal  property,  if  such  be  his  line  of  business.^ 

1  §365;  11  Wend.  (N.  Y.)  571;  Waland  v.  Elkins,  1  Stark.  272; 
Fail-child  v.  Slocum,  19  Wend.  329;  s.  c.  7  Hill,  292;  Helsby  v.  Mears, 
5  B.  cSi  Or.  501;  s.  c.  8  Dow.  &  Ry.  289. 

2  §  365 ;  Gill  v.  Manchester,  &c.  R.,  L.  R.  8  Q.  B.  186. 
8  Railroad  Co.  v.  Pratt,  22  Wall.  123.     See  c.  9,  post. 

*  §  366.  When  the  books  speak  of  "  common  carriers  of  goods/'  it  is 
not  meant  that  what  are  technically  "  goods  "  alone  are  included. 

5  §§  367-370;  11  Johns.  (N.  Y.)  107;  2  Wend.  (N.  Y.)  327;  6  Wend. 
(N.  Y.)  335;  1  Pick.  (Mass.)  50. 

But  here  we  must  consider  (1)  the  true  nature  and  scope  of  the  carrier 
business  as  held  out  to  the  public;  (2)  the  fundamental  restraints  which 
charter  or  legislation  may  have  .imposed  upon  that  business.  As  to 
steamboats,  in  such  a  pursuit,  see  Citizens'  Bank  v.  Nantucket  Steamboat 
Co.,  2  Story  (U.  S.),  16  (specie  taken  rather  than  bank  bills  except  for  a 
passenger's  baggage);  Sewall  v.  Allen.  6  Wend.  (N.  Y.)  335;  23  Vt.  186; 
Garey  v.  Meagher,  33  Ala.  030.  As  to  stage-coaches,  railwaj's,  etc.,  and 
other  land  carriers,  see  §  369;  Bean  v.  Sturtevant,  8  N.  H.  146;  7  N.  H. 
157.  Money  and  valuables,  apart  from  what  may  properly  be  considered 
as  baggage,  are  usually  conveyed  on  our  steam  highways,  at  the  present 


158  THE   LAW   OF   BAILMENTS 

Animals,  too,  are  "  chattels  "  or  "  personal  property,"  and,  as 
such,  may  be  bailed  for  transportation  as  well  as  custody; 
though  the  peculiar  habits  and  propensities  of  living  creatures 
give  rise  to  novel  methods  of  transportation,  and  introduce 
perplexing  qualifications  of  the  common  carrier's  liability,  in 
respect  of  their  conveyance,  which  we  shall  consider  here- 
after.i 

290.  Dangerous  articles,  etc.,  may  be  the  subject  of  carriage. 
It  might  be  worth  inquiring  whether,  in  view  of  the  variety 
and  vastness  of  our  modern  inland  and  external  carrying  trade, 
and  the  constant  tendency  of  all  labor  to  subdivision,  a  carrier 
should  not  be  able  to  make  still  closer  limitations  of  the  scope 
of  his  employment,  in  order  that  his  vehicles  may  not  be  put 
to  uses  for  which  they  are  plainly  unsuitable,  nor  freight  be 
thrust  upon  him  of  a  sort  which  he  neither  offers  to  take,  nor 

day,  under  the  especial  safeguard  of  an  express  carrier ;  and  so  is  it,  to 
some  extent,  with  transportation  by  water. 

In  collecting  and  remitting  money,  or  in  selling  freight  and  returning 
the  proceeds  obtained,  the  extent  of  the  particular  carrier's  business  as  held 
out  to  the  public  may  be  considered,  in  the  particular  era  or  locality.  See 
§  368;  post,  c.  6  ("  C.  O.  D."). 

1  §  370;  Nugent  v.  Smith,  1  C.  P.  D.  19,  423;  Smith  v.  New  Haven,  &c. 
R.,  12  Allen  (Mass.),  531;  Clark  v.  Rochester  R.,  1-1  N.  Y.  570;  Kansas 
Pacific  R.  V.  Nichols,  9  Kans.  235;  Bamberg  v.  South  Carolina  R.,  9  S.  C. 
(N.  s.)  Gl. 

In  some  of  our  late  cases  it  is  asserted  that,  as  the  early  precedents 
contain  notliing  about  animals,  the  common  law  may  be  assumed  to  have 
taken  no  cognizance  of  such  property,  and  did  not  mean  to  include  it; 
hence,  they  argue,  a  common  carrier  is  not  an  insurer  of  live-stock.  9 
Bush  (Ky.),  645;  21  Mich.  165;  see  also  10  Lea  (Tenn.),  304.  This 
reasoning  appears  fallacious,  besides  being  opposed  to  all  the  analogies  of 
the  law  of  bailment;  which  ought  here  to  have  expressly  excepted  ani- 
mals, had  not  their  carriage,  so  far  as  the  nature  of  the  case  permitted, 
been  intended  to  follow  the  usual  rule  of  chattels  or  personal  property. 
The  ancient  carrier's  wagon  did  not,  it  is  true,  transport  live-stock  to  any- 
thing like  the  extent  of  modern  railway  cars;  but  a  bird  in  a  cage,  a  dog 
fastened  by  a  cord,  or  a  young  lamb  must  occasionally  have  been  thus 
transported  for  hire  ;  and  this  at  a  day  when,  for  obvious  reasons,  coupon- 
bonds  could  not  have  been  thus  taken,  nor  spinning-jennies,  nor  could 
the  common-law  jurists  have  actually  had  these  species  of  jiersonal  prop- 
erty in  contemplation.     And  yet  as  carriers  may,  by  the  method  of  hold- 


NATURE   OF   THE   COMMON   CARRIER   RELATION         159 

desires,  nor  has  the  facilities  for  handling.^  But,  doubtless, 
the  general  obligation  of  a  common  carrier  is  and  always  has 
been  to  receive  and  carry  and  to  provide  the  means  for  carry- 
ing, whatever  may  be  offered  him  for  reward  within  the  scope 
of  his  calling  as  professed  to  the  public.  Be  the  subject  never 
so  dangerous  or  difficult,  some  one  must  be  prepared  to  carry 
it  for  the  public,  and  his  charge  may  be  commensurate  with 
the  pains  and  danger  involved.^ 

ing  themselves  out  to  the  public,  specialize  their  business  considerably, 
so  even  a  railroad  company,  or  a  vessel,  may  thus  exclude  the  business  of 
carrying  live-stock.  See  123  U.  S.  727.  But  usually  a  railroad  makes 
no  such  disavowal  in  holding  itself  out  for  business.  Ayres  v.  Chicago  R., 
71  Wis.  372. 

1  See  Brass  v.  Maitland,  6  E.  &  B.  470;  Boston  &  Albany  R.  v.  Shanly,  . 

107  Mass.  568;  Nitro-Glycerine  Case,  15  Wall.  (U.  S.)  524  (instances  of         u 
transportation  of  petroleum,  nitro-glycerine,  &c.,  where  cars  of  peculiar      NT 
construction  must  be  used  and  the  hazard  is  very  great).  \ 

2  §  371.  y  o 


/ 


CHAPTER  III. 

WHAT    CONSTITUTES    BAILMENT    TO   THE   COMMON   CARRIER. 

291.  I.  General  Duty  of  Receiving.  By  the  common  law  every 
common  carrier  is  bound  to  receive,  without  respect  of  persons, 
whatever  may  be  offered  him  for  transportation  on  reasonable 
hire,  so  far  as  comports  with  his  means  and  the  nature  of  his 
calling.!  This  statement  embodies,  it  will  be  perceived,  three 
marked  qualifications  of  one's  duty  to  receive  and  convey: 
(1)  that  the  party  offering  the  chattels  should  offer  for  reason- 
able hire ;  (2)  that  the  common  carrier's  means  of  safe  convey- 
ance should  be  adequate  ;  (3)  that  such  carriage  should  be  in 
the  line  of  his  vocation. 

292.  (1)  The  party  offering  should  offer  for  hire,  since  it  is 
clear  that  a  common  carrier  is  under  no  obligation  to  take 
things,  except  upon  compensation  for  his  service.  And,  as  no 
mean  offset  to  the  great  risks  he  must  encounter,  a  common 
carrier  has  the  most  ample  means  of  making  that  rect^mpense 
sure  ;  for,  to  say  nothing  of  the  customer's  credit  as  a  source 
of  reliance,  such  a  party  may  demand  pay  in  advance  as  the 
condition  of  carrjdng,  or,  as  is  commonly  preferred,  retain  by 
way  of  lien  whatever  he  conveys  for  any  customer,  for  the 
security  of  the  transportation  costs  and  charges.^  But  if  his 
reasonable  compensation  be  tendered  him,  the  carrier  who 
refuses,  without  assigning  good  reason,  to  carry  the  goods  so 
offered,  is  put  in  default,  and  may  be  sued  as  for  breach  of  a 
public  duty ;  ^  nor  need  even  such  a  tender  be  made,  provided 
the  party  wronged  by  the  carrier's  refusal  can  aver  and  prove 
that  he  was  ready  and  willing  to  pay  in  advance  for  the  carriage, 
or  that  the  carrier's  misconduct  made  such  tender  useless.* 

1  §  372.  ^  Seepoxt,  c.  7.  »  §  373. 

*  Pickford  v.  Grand  Junction  R.,  12  M.  &  W.  766 ;  Galena  R.  v.  Rae, 
18  111.   488;  Texas  R.  v.  Nicholson,  61   Tex.  491.     As  to  remedies,  see 


BAILMENT  TO  THE   CARRIER  161 

293.  It  is  not  what  the  carrier  may  arbitrarily  exact,  that 
furnishes  here  the  criterion  of  compensation,  but  he  is  suable 
if  he  refuse  to  carry  for  what  is  a  reasonable  reward ;  for, 
were  the  rule  otherwise,  a  carrier  might  easily  evade  his  duty 
by  asking  of  his  customer  an  exorbitant  sum.^  But  the  com- 
mon law  never  went  so  far  as  to  compel  a  common  carrier  to 
treat  all  customers  equally.  He  might  show  special  favor  to 
individuals  by  taking  their  freight  at  an  unreasonably  low 
rate,  or  even  free  of  charge,  without  being  compelled  to  do 
the  same  by  others.  The  fact  that  others  were  charged  less 
was  available  to  a  particular  customer  only  so  far  as  it  tended 
to  show  that  this  customer  himself  was  charged  unjustly  high; 
and  if  the  carrier  had  demanded  of  him  only  a  reasonable  re- 
ward for  the  service,  this  duty  was  well  discharged.^  Hence 
the  origin  of  "  equality  statutes  "  or  anti-discriminating  leg- 
islation in  modern  times.^ 

294.  Discrimination  in  charges  between  local  freight  and 
through  freight  is,  to  a  certain  extent,  neither  unjust,  illegal, 
nor  unconstitutional.*  Nor  would  it  be  unfair  discrimination 
for  a  common  carrier  to  charge  higher  rates  than  usual  where 
the  risk  becomes,  from  some  pressing  cause,  excessive,  or  to 
exact  a  premium  for  taking  property  which  is  extra-hazardous, 
and  requires  special  pains  in  the  handling;  or,  in  general,  to 
fix  a  tariff  of  rates,  variable  on  reasonable  considerations,  to 

further,  c.  8.  A  complete  tender  of  specific  property  to  be  trans- 
ported, as  well  as  of  recompense,  seems  proper.  61  Ark.  560 ;  66  Vt. 
636. 

^  §  374. 

2  Great  Western  R.  v.  Sutton,  L.  R.  4  H.  L.  226,  237 ;  Johnson  v. 
Pensacola  R.,  16  Fla.  623  ;  Lough  v.  Outerbridge,  143  N.  Y.  271.  See 
this  subject  discussed  in  McDuffee  v.  Portland,  &c.  R.,  52  N.  H.  430; 
Messenger  v.  Penn.  R.,  37  N.  J.  L.  531;  12  Fed.  R.  309. 

2  §  374  ;  local  statutes  (as  to  railways  in  particular)  ;  L.  R.  4  H.  L.  226  ; 
149  U.  S.  680  (rebates)  ;  49  Ohio  St.  649 ;  1.32  Ind.  517 ;  143  N.  Y.  271 ; 
(1891)  1  Q.  B.  120;  (1892)  2  Q.  B.  229.     See  299,  post. 

"  §  375 ;  47  Penn.  St.  338. 

As  to  injunction  to  prevent  discrimination,  see  27  Fed.  (U.  S.)  529; 
c.  8  poxt;  123  Fed.  (U.  S.)  789.  The  legislature  has  power  to  regulate 
charges.     199  111.  484.       .  . 

11 


162  THE   LAW   OF   BAILMENTS 

■which  all  of  his  customers  are  expected  to  conform.^  Common 
carriers,  again,  may  guard  themselves  against  undue  competi- 
tion.2  But  no  common  carrier  has  a  light  to  impose  conditions 
of  shipment  tending  to  secure  to  himself  exorbitant  or  unlaw- 
ful compensation  or  other  unreasonable  advantage,  even  by 
indirection ;  nor  can  he  refuse  freight  because  the  customer 
does  not  give  him  a  monopoly  of  his  business.^ 

295.  (2)  The  carrier's  duty  is  also  qualified  by  his  accommo- 
dations. He  may  excuse  transportation,  in  a  particular  case, 
on  the  ground  that  his  means  of  conveyance  are  inadequate 
for  taking  safely  and  suitably  what  is  offered  him.  Like  the 
innkeeper,  he  may  stop  receiving  when  his  quarters  are  full ; 
for  he  is  under  no  obligation  to  provide  extra  carriages  to 
satisfy  an  unusual  demand ;  and  some  carriers  employ  a 
large  capital,  others  a  small  one.*  So,  if  his  conveyance  be 
utterly  unfit  for  goods  of  the  description  offered,  and  he 
has  not  held  himself  out  for  taking  such,  the  carrier  can 
make  this  his  excuse  for  not  receiving  them ;  and  further- 
more, he  may  decline  immediate  acceptance  if  the  property 
will,  at  the  particular  time,  be  exposed  on  his  route,  from 
special  cause,  to  extraordinary  danger  or  popular  rage,^  or 

,.    1  See  Pickford  v.  Cxrand  Junction  R.,  10  M.  &  W.  399,  422. 

2  See  1  Duv.  (Ky.)  143  ;  People  v.  Boston,  &c.  R.,  70.  N.  Y.  569;  Munn 
V.  Illinois,  94  U.  S.  113.  Rates  are  presumed  to  continue  as  previously, 
and  a  carrier  must  respect  his  continuous  offer.  Harvey  v.  Conn.  R.,  124 
Mass.  421  ;  10  Fed.  (U.  S.)  774. 

3  Chicago  R.  i'.  Suffern,  129  111.  274;  14  Blatchf.  (U.  S.)  453. 

*  §  377 ;  Thayer  v.  Burchard,  99  Mass.  508.  For  such  special  emer- 
gency, the  company  should  provide  with  reasonable  diligence.  2  Kern. 
(N".  Y.)  245;  Galena  R.  v.  Rae,  18  111.  488;  10  Biss.  170. 

5  §  377 ;  An  insurrection  or  strike  or  riot  which  attains  such  propor- 
tions that  it  has  to  be  finally  put  down  by  the  military  power  of  the  State 
will  excuse  a  railroad  comjiany  from  receiving  and  carrying  live-stock. 
Pittsburg  R.  v.  HoUowell,  05  Ind.  88.  And  this,  notwithstanding  the 
insurrection  arose  from  the  violence  of  men  who  had  been  employed  by 
the  railway,  but  struck  for  higher  wages  and  severed  their  relation  with 
the  company.  76.;  Geismer  v.  Lake  Shore  R.,  102  N.  Y.  563.  AUter, 
where  the  company's  employes  simply  refused  to  work  without  increased 
wages,  no  acts  of  violence,  riot,  or  intimidation  having  occurred.  28 
Ilun  (N.  Y.),  543;  Blackstock  v.  N.  Y.  R.,  20  N.  Y.  48.     And  see  Haas 


BAILMENT  TO   THE   CARIIIER  163 

if  he  is  under  coercion  so  as  not  to  be  in  the  free  exercise 
of  his  vocation.! 

296.  There  should  be  uo  unreasonable  delay  either  in  receiv- 
ing or  transporting ;  but  for  delays  that  under  the  peculiar 
circumstances  are  reasonable,  a  carrier  is  fairly  excusable.^ 

297.  (3)  The  scope  of  one's  vocation,  as  held  out,  also  limits 
one's  duty  to  receive.  Not  every  common  carrier  is  a  universal 
carrier.  Passenger  carriers  do  not,  as  a  matter  of  course,  hold 
themselves  out  for  general  freight,  nor  do  freight  carriers 
always  undertake  to  carry  passengers  also.  And  much  closer 
may  one's  public  business  be  restricted,  if  he  so  AA'ills,  so  offers 
himself,  and  acts  consistently.  "At  common  law,"  sa3^s  Parke, 
B.,  "  a  carrier  is  not  bound  to  carry  for  every  person  tendering 
goods  of  any  description,  but  his  obligation  is  to  carry  accord- 
ing to  his  public  profession."  ^  In  accordance  with  such  public 
profession,  then,  one  might  hold  himself  out  to  carry  a  particu- 
lar description  of  property  only,  or,  at  all  events,  so  as  to 
reasonably  exclude  the  carriage  of  certain  kinds  of  chattels  ; 
in  which  case  his  limitations,  if  openly  shown  and  reasonable, 
ought  to  be  respected  by  the  public* 

r.  Kansas  City  R.,  81  Ga.  792;  Louisville  R.  v.  Queen  Coal  Co.,  Ky. 
(1896).  So  is  it  even  though  the  journey  be  already  begun.  Gulf  R.  v. 
Levi,  76  Tex.  337  ;  Lake  Shore  R.  v.  Bennett,  89  Ind.  457. 

1  Phelps  V.  Illinois  Central  R.,  94  111.  548. 

2  §  377;  Geismer  v.  Lake  Shore  R.,  102  N.  Y.  563.  And  see  j9os/, 
C.4. 

3  Johnson  v.  Midland  R.,  4  Ex.  367,  372;  12  Mod.  484;  Oxlade  v. 
North-Eastern  R.,  15  C.  B.  N.  s.  680;  Citizens'  Bank  v.  Nantucket 
Steamboat  Co.,  2  Story  (U.  S.),  49.  There  are  baggage  (or  trunk)  car- 
riers, piano  carriers,  etc.  As  to  carrying  live-stock,  in  any  wholesale 
sense,  it  would  appear  that  a  railway  may  expressly  hold  out  its  busi- 
ness as  exclusive  of  such  freight.  It  certainly  may  as  to  money  and 
valuables,  such  as  express  companies  make  their  own  special  business. 
See  ante,  289,  290.     And  see  118  Fed.  (U.  S.)  162. 

*  With  like  effect  one  may  and  commonly  does  limit  his  course  of 
transit  to  a  certain  route  or  area  and  as  between  certain  places,  or  estab- 
lish it  from  one  fixed  point  to  another,  so  as  to  exclude  freight  for  any 
or  all  intermediate  places. 

§  378  ;  Pittsburgh  R.  v.  Morton,  61  Ind.  539;  55  111.  95  ;  Chicago  R. 
V.  People,  56  111.  365  ;  Bullard  v.  Am.  Express  Co.,  Mich.  (1896). 


164  THE   LAW   OF   BAILMENTS 

298.  The  carrier  may  promulgate  reasonable  rules  concerning 
the  time  and  methods  of  receiving  freight,  as  incidental  to 
putting  bounds  to  the  scope  of  his  vocation.  He  may  require 
delivery  to  be  at  seasonable  times,  and  close  his  doors  upon  all 
customers  after  certain  hours,  or  when  the  car  or  vessel  ought 
to  be  ready  to  start.  Nor  can  a  carrier  be  held  bound  to  receive 
goods  so  long  before  the  time  of  departure  as  to  add  unfairly  to 
his  risks ;  nor  to  receive  at  unreasonable  places.^  Reasonable 
rules,  too,  as  to  the  mode  of  packing  articles  offered  for  trans- 
portation may  be  made  and  enforced  ;  though  not  to  the  extent 
of  putting  the  consignor  to  hardship.^  Cjn  general,  while 
unreasonable  rules  are  forbidden,  the  carrier's  fair  and  reason- 
able regulations  must  be  respected  by  the  consignor  who  is 
made  duly  aware  of  them.^ 

299.  Under  the  influence  of  the  equality  statutes,  already 
noticed,  not  only  discrimi]iating  and  unfair  rates  of  transpor- 
tation are  checked  and  discouraged,  but  the  undue  preference 
of  customers  in  other  respects.*  Discrimination  and  partiality 
in  the  exercise  of  a  public  vocation  our  common  law  certainly 
abhors  ;  and  3'et  the  common  law,  independently  of  such  salu- 
tary legislation,  fails  positively  to  forbid  some  practices  whose 
mischievous  tendency  must  undoubtedly  be  to  favor  special 
patrons  to  the  detriment  of  others  and  the  genei-al  public.^ 
By  the  better  modern  opinion  a  railroad  is  not  bound  at 
common  law  to  furnish  equal  express  facilities  to  all  companies 
undertaking  this  peculiar  business  as  now  conducted  in  special 
passenger  cars ;  though  in  receiving  for  transportation  the 
express  matter  of  small  jobbing  expressmen  the  rule  may  still 
be  otherwise.'' 

1  §  379  ;  12  M.  &  W.  766  ;  Frazier  v.  Kansas  City  R.,  48  Iowa,  571. 

2  See  Munster  v.  South-Eastern  R.,  4  C.  B.  n.  s.  676. 
8  Gleason  v.  Goodrich  Trans.  Co.,  32  Wis.  85. 

4  §  380;  Palmer  re,  L.  R.  6  C.  P.  194  (in  time  of  delivery);  Evershed 
V.  London  R.,  2  Q.  B.  D.  254  (favors  in  loading  or  unloading  or  filling 
orders).     See  a/i^e,  293. 

5  §  380 ;  see  c.  9. 

•  It  has  been  held  in  some  States  that  for  a  railway  to  confer  a  monop- 
oly of  its  carriage  facilities  upon  one  express  to  the  exclusion  of  all  others, 


^ 


BAILMENT   TO   THE    CARRIER  165 

300.  Suitable  facilities  for  receiving  and  discharging  freight 
should  be  furnished,  and  the  customer  should  not  be  burdened 
with  special  charges  for  furnishing  such  facilities.^ 

301.  The  carrier  may  waive  his  right  to  refuse  goods  in  a 
particular  case,  and  thereby  limit  his  own  rights  and  remedies.^ 

302.  Goods  from  wrongful  parties  may  be  refused  by  the  car- 
rier ;  for  he  must  not  knowingly  connive  at  wrong,  but  on  the 
coiitrary  is  put  upon  inquiry  where  suspicion  arises.^ 

2^  303.  II.  When  the  Carrier's  Responsibility  commences.  At 
what  time,  we  now  inquire,  does  the  common  carrier's  responsi- 
bility commence  ?     This  is  often  a  delicate  matter  of  fact  to 

or  even  better  and  extra  facilities  simply,  is  a  giievance  such  as  entitles 
an  express  whose  packaj^es  are  refused  transportation  to  sue  for  damages. 
2-1  Penn.  St.  378;  New  England  Express  Co.  v.  INlaine  Central  R.,  57  Me. 
188;  iMcDuffee  v.  Portland  R.,  52  N.  II.  430;  Audenried  r.  Phil.  R.,  68 
Penn.  St.  370.  On  the  other  hand,  a  JNlassachusetts  case  ruled  that  the 
common  carrier  was  not  bound  to  continue  to  any  expressman  greater 
facilities  than  it  afforded  the  general  public,  even  though  the  practical 
effect  were  to  cut  off  privileges  long  enjoyed  by  a  party  and  to  transfer 
his  business  to  the  railway's  own  control.  Sargent  v.  Boston  &  Lowell  R., 
115  Mass.  416.  And  the  Supreme  Court  of  the  United  States  in  1886 
confirmed  this  view  of  the  question  by  a  decree  which  reversed  a  number 
of  decisions  made  previously  in  the  various  southwestern  circuits  and  dis- 
tricts, and  favoring  facilities  to  all  express  companies  alike.  Express 
Cases,  117  U.  S.  1,  reversing  3  ]\IcC.  147;  8  Sawyer,  000;  2  Flip.  672; 
18  Fed.  R.  17,  etc.  The  practical  convenience  of  such  carriers  in  their 
peculiar  relations  to  express  business  justifies,  perhaps,  such  a  decision. 

For  local  legislation  forbidding  discrimination  among  express  com- 
panies, see  165  Mass.  398;  81  Me.  92;  24  Penn.  St.  378.  Such  statutes 
can  have  no  force  as  to  interstate  or  foreign  transportation.  See  c.  10, 
post. 

1  §  380a;  Covington  Co.  v.  Keith,  139  U.  S.  128  (as  to  live-stock). 
See  further,  Chicago  R.  v.  Wolcott,  141  Ind.  267  ;  47  Ohio  St.  130 ; 
Lough  V.  Outerbridge,  143  N.  Y.  271  (reduced  rates  to  continuous 
patrons  offered). 

^  §  381;  12  M.  &  W.  766  ;  14  Rich  (S.  C.)  181  ;  18  111.  488 ;  ^l_Tex. 
j^pi       And  see  c.  7,  post. 

One  who  agrees  expressly  to  furnish  facilities  at  a  given  date  becomes 
liable  on  his  contract  accordingly.  §  383.  But  the  contract  must  have 
mutually  closed.     99  Ya.  394. 

3  §  382 ;  Fitch  v.  Newberry,  1  Dougl.  (Mich.)  1  ;  Hayes  v.  Campbell,  63 
Cal.  14^ 


166  THE  LAW  OF  BAILMENTS 

determine,  for  it  may  depend  upon  a  variety  of  circumstances 
to  which  custom  gives  the  coloring.  But  the  main  principle  is 
the  same  as  in  other  bailments :  namely,  that,  when  chattels 
are  delivered  to  one  as  common  carrier,  and  in  that  character 
and  no  other  accepted  by  him,  the  incident  responsibilities  at 
once  attach ;  and  further,  there  may  be  a  contract  for  the  bail- 
ment before  the  bailment  itself  takes  place.  (An  other  words  one 
is  chargeable  as  carrier  when  he  receives  tlie  particular  gOQd^ 
as  for  present  and  immediate  transportation  and  not  earlier.^  ' 

304.  Such  delivery  and  acceptance  may  be  individual,  or 
through  the  medium  of  agents.  Railways  and  other  chartered 
companies  must  needs  deal  with  the  public  through  officers, 
managers,  and  subordinates  ;  vessels  are  manned  and  officered ; 
and,  for  all  carriage  on  an  extensive  scale,  intermediate  parties 
must  be  employed  for  various  purposes.  There  are  agents  for 
freight,  and  agents  whose  sole  concern  is  the  locomotion; 
agents  with  directing  authority,  and  subordinates;  agents  to 
make  and  receive  payments,  and  agents  to  load,  unload,  and 
store  things,  as  may  be  needful.  Now,  to  constitute  a  delivery 
of  property  to  a  carrier's  agent  in  the  proper  sense,  the  thing 
offered  for  transportation  should  come  into  the  hands  of  the 
carrier's  agent  for  receiving  freight,  not  of  any  person  whom 
the  carrier  may  employ  for  other  purjDoses.^ 

305.  The  proper  place  and  manner  of  delivery  to  the  carrier 
may  be  of  much  consequence  ;  and,  as  a  rule,  delivery  should 
be  at  the  carrier's  habitual  place  of  receiving  his  customer's 
goods.^     A  railway  is  not  to  be  pronounced  the  common  car- 

1  §  384. 

2  §  386.  See  23  Conn.  595  ;  21  Ind.  54  (delivery  to  deck-hand  of  a 
steamer  insufficient) ;  Cronkite  v.  Wells,  32  N.  Y.  247  (mere  clerk  not 
freight  agent);  1  Woods  (U.  S.),  96.  The  scope  of  the  agent's  authority 
to  receive  and  accept,  as  brought  home  to  a  consignor's  notice,  cannot 
be  safely  disregarded.  And  see  3  Camp.  414;  3  E.  D.  Smith  (N.  Y.), 
571  (delivery  to  unknown  person  at  a  wharf).  Agents  differ  in  scope 
of  authority  ;  e.  g.  &  railway  station  agent  is  a  general  factotum,  while 
duties  are  much  subdivided  at  the  great  terminal  points.  See  further, 
109  Iowa,  .351. 

8  §  386  ;  Cronkite  v.  Wells,  32  N.  Y".  247.  But  see  307,  as  to  the  bear- 
ing of  usage  on  such  matters. 


BAILMENT   TO   THE   CARRIER  167 

rier  of  goods  which  are  carelessly  left  at  the  side  of  the  track, 
to  be  picked  up  by  the  next  freight  train,  there  being  neither 
station  nor  freight-agent  at  hand.^  For  freight  should,  as  a 
rule,  be  delivered  at  such  a  sj)ot  on  the  carrier's  premises  that 
the  carrier  or  his  servant  charged  with  such  affairs  can  at  once 
take  control  and  know  that  he  is  expected  to  assume  the 
liability.^  One's  delivery  of  the  property  on  the  carrier's 
premises  should  be  accompanied  by  some  notice,  express  or 
implied,  to  the  carrier  or  his  proper  agent,  that  the  consignor 
intends  committing  it  for  a  specific  transportation.  Merely 
placing  goods  where  the  carrier  could  easily  have  taken  them 
is  not  sufficient ;  and  a  customer  may  well  bear  his  own  loss 
when  he  silently  deposits  the  thing  where  it  must  needs  be 
exposed  to  harm.^ 

306.  Actual  or  constructive  acceptance  by  the  carrier  is,  then, 
an  indispensable  element  in  every  complete  delivery.  And 
business  usage  will  not  unfrequently  call  for  the  booking  or 
entry  of  the  goods  by  the  carrier,  followed  by  his  handing 
over  a  receipt,  way-bill,  bill  of  lading,  or  other  like  token  of 
the  responsibility  he  has  thus  assumed  towards  the  property. 
Yet  the  assumption  of  the  common  carrier's  responsibility 
turns  not  upon  the  interchange  of  documents,  but  upon  the 
carrier's  acceptance ;  upon  the  completion  of  tliat  bailment 
delivery  in  fact,  actual  or  constructive,  of  which  documents 
afford  only  a  moie  convincing  proof.*      Whenever  property 

^  Wells  V.  Wilmington  R.,  G  Jones  (N.  C),  47.  And  the  more  so  as  to 
a  mere  switcli  where  there  is  not  even  a  platform.  Kansas  City  v.  Lilley, 
Miss.  (18!»1).     Bnt  cf.  'SOT  post,  as  to  usage. 

2  See  Grbsvenor  i\  New  York  Central  R.,  39  N.  Y.  34. 

3  1  Ld.  Raym.  46;  6  Cow.  (N.  Y.)  757;  Grosvenor  v.  New  York 
Central  R.,  39  N.  1^  34;  Gleason  r.  Goodrich  Trans.  Co.,  32  Wis.  85; 
O'Bannon  r.  Southern  Express  Co.,  51  Ala.  481.  Not  even  placing  upon 
the  carrier's  vehicle  will  suffice  without  his  due  knowledge  and  sanction. 
1  C.  &  P.  640  ;  38  111.  -.VA. 

*  §  387  ;  The  Keokuk,  9  Wall.  (U.  S.)  517  ;  Illinois  Central  R.  v.  Smyser, 
83  111.  354  ;  Judson  r.  Western  R.,  4  Allen  (Mass.),  520;  5  Bosw.  (N.  Y.) 
625;  Hickox  v.  Naugatuck  R.,  31  Conn.  281.  The  mere  date  of  a  bill  of 
lading  does  not  conclude  the  date  of  actual  receipt  as  a  fact.  56  Ark. 
271.     And  see  93  Tenu.  314. 


168  THE  LAW  OF  BAILMENTS 

is  received  for  purposes  of  present  transportation,  knowingly 
and  willingly,  by  the  party  who  professes  the  public  employ- 
ment, and  the  consignor  relinquishes  control  accordingly, 
one's  duty  as  common  carrier  on  that  instant  arises.  It  is 
enough  that  such  assent  be  given  by  one  the  scope  of  wJiose 
employment  authorizes  him  to  make  the  delegated  acceptance ; 
and,  under  circumstances  like  these,  delivery  of  the  property 
to  the  person  and  at  the  place  where  such  things  are  habitually 
left  for  the  carrier,  will  charge  him  sufficiently,  whether  the 
freight  money  was  paid  or  not,  and  notwithstanding  the  cir- 
cumstance that  a  writing  or  other  token  of  acceptance  follows 
at  a  later  stage.^  And  the  fact  of  delivery  having  been  plainly 
brought  home  to  the  carrier,  no  actual  acceptance  on  his  part 
need  be  shown  by  the  customer;  for  negative  conduct  and  even 
silence  may  be  construed  into  the  assumption  of  that  duty  which 
the  public  servant  has  no  right  to  renounce  at  discretion.^ 

307.  Usage  or  special  contract  may  extend  the  presumptive 
effect  of  a  due  delivery  and  acceptance,  in  the  particular  case.^ 
Business  methods  go  far  towards  determining  the  point  of 
time  at  which  the  thing  passes  into  the  carrier's  control  with 
his  assent  for  present  transit  purposes.  And,  provided  the 
circumstances  of  a  case  warrant  the  inference  that  a  certain 
carrier  has  accepted  for  present  transportation  in  his  public 
capacity,  the  place  of  acceptance  becomes  immaterial ;  for  it 
may  be  in  or  out  of  his  office,  store,  depot,  or  warehouse,  and 
either  with  or  without  being  accompanied  by  formalities.^ 

1  2  C.  &  K.  680. 

2  §  387.  See,  as  to  due  and  presumptive  acceptance  by  the  proper  agent 
held  out  for  the  particular  occasion,  Grosvenor  v.  New  York  Central  11., 
39  N.  Y.  34,  37. 

3  §  388 ;  Merriam  v.  Hartford  R.,  20  Conn.  351  (delivery  to  some  person 
unidentified,  who  called  oxit,  "  All  right ").  And  see  an  extreme  railway 
case,  as  to  the  customary  delivery  of  cotton  at  a  remote  station  by  leaving 
it  where  there  was  no  actual  agent  to  receive.  Montgomery  R.  v.  Kolb, 
73  Ala.  390;  41  La.  An.  639.  But  precedents  like  these  enfeeble  the 
main  principle  we  are  discussing,  and  ought  not  to  be  far  extended  by 
construction.     See  Tate  v.  Yazoo  R.,  78  Miss.  212  ;  ante  305. 

*  SeeSS  111.  354;  89  111.  211.  A  nod  or  other  oral  assent  to  the  de- 
livery may  be  enough  in  numerous  instances. 


BAILMENT  TO   THE   CARRIER  169 

308.  Expressmen  and  other  carriers  who  send  their  servants 
habitually  to  the  customer's  dwelling  or  store  to  receive 
goods,  shift,  by  so  doing,  their  place  of  carriage  acceptance, 
and  become  there  as  fully  bound  as  though  delivery  had 
been  made  on  their  own  business  premises. ^  In  some  special 
instances  the  carrier's  duty  of  acceptance  requires  him  to 
come  and  select ;  in  which  case  he  must  perform  accord- 
ing to  the  mutual  understanding,  and  neither  beyond  nor 
short  of  it.2 

309.  But  a  carrier  may  be  a  mere  bailee  in  his  preliminary  or 
subsequent  capacity,  while  holding  the  property  placed  in  his 
charge  for  transportation.  Railway  freight  depots,  or  wharves, 
where  much  property  is  necessarily  held,  from  one  cause  or  an- 
other, on  long  storage,  furnish  instances  where  the  distinction  of 
warehousemen  is  applicable.  For  while  every  public  carrier 
may  doubtless  refuse  to  receive  property  when  tendered  him 
for  transit  unreasonably  early,  such  carrier  may  accept,  if  he 
choose,  on  the  just  understanding,  express  or  implied,  that, 
until  he  is  prepared  to  load  aboard  for  the  journey,  his  own 
liability  shall  be  simply  tliat  of  warehouseman  or  hired  cus- 
todian, or,  if  the  case  were  freed  utterly  from  the  consideration 
of  recompense,  as  a  gratuitous  bailee.^  As  a  rule,  the  carrier 
who  accepts  is  taken  to  accept  for  present  transportation  at 
his  own  convenience,  and  accordingly  as  a  party  at  once  liable 
as  common  carrier.*  Yet  wherever  the  bailment  relation  which 
follows  the  transfer  of  possession  imports,  upon  all  the  evi- 
dence, no  duty  or  intent  of  immediate  or  present  transportation 
on  his  part,  but  rather  that  he  shall  await  his  consignor's  fur- 
ther acts  or  instructions  before  putting  the  goods  on  their 
course,  or  accommodate  him  by  a  storage,  the  position  of  the 
bailee,  though  he  be  a  public  carrier  by  profession,  will  con- 


1  §  389  ;    8  C.  &  p.  361  ;  8  Pick.  (Mass.)  182. 

2  Cooper  L\  Berry,  21  Ga.  556.     And  see  L.  R.  6  C.  P.  194. 

3  §  390. 

*  §  390;  2  B.  &  P.  416,  419:  6  Gray  (Mass.),  539;  Blos.soin  v.  Griflan, 
3  Keni,  (N.  Y.)  569;  Clarke  v.  Needles,  25  Peuu.  St.  338;  Michigan  South- 
ern R.  V.  Shurtz,  7  Mich.  515. 


170  THE   LAW   OF   BAILMENTS 

tinue  meantime  that  of  warehouseman   or  simple  bailee,  and 
not  of  carrier.^ 

310.  But  the  presumption  arises,  where  goods  are  delivered 
and  accepted  by  a  common  carrier  in  the  ordinary  course,  and 
nothing  remains  for  the  consignor  to  do  to  them,  that  no  inter- 
mediate storage  is  requisite  unless  it  be  for  the  carrier's  conven- 
ience ;  tliat  the  acceptance  is,  in  fact,  to  forward  forthwith,  or 
solely  as  common  carrier.^  How  the  common  carrier  may  be 
changed  into  a  custodian  or  warehouseman,  at  the  journey's 
end,  because  of  some  delay  in  delivery  over  to  the  proper  con- 
signee, we  shall  consider  hereafter.^ 

311.  The  carrier  usually  loads  and  stows  and  determines  the 
place  for  the  goods  to  occupy  in  his  vehicle.*  If  he  permits 
the  loading  to  be  done  by  the  consignor  or  his  servants,  the 
law  treats  them,  for  this  purpose,  as  agents  of  his  own,  and 
subject  to  his  direction,  save  so  far  as  it  might  appear  that  the 
transfer  of  the  consignor's  control  was  still  kept  in  abeyance.^ 
But  shippers  sometimes  have  a  private  car  or  quarters  and  are 
held  liable  for  loading  and  stowing  accordingly.^ 

1  Barron  v.  Eldredge,  100  Mass.  457;  102  Mass.  2S4;  St.  Louis  R.  v. 
Montgomery,  39  111.  335 ;  Watts  v.  Boston  &  Lowell  R.,  106  Mass.  4G6 
(part  of  a  lot  received)  ;  Schmidt  v.  Chicago  R.,  90  Wis.  504  ;  112  Mo. 
622;  100  Fed.  (U.  S.)  359  (live-stock  waiting);  154  U.  S.  155  (cotton 
to  be  compressed).     Cf.  110  Ga.  173. 

2  4  Fost.  (N.  H.)  71 ;  Nichols  v.  Smith,  115  Mass.  332;  Mickox  v.  Nauga- 
tuck  R.,  31  Conn.  281;  Grand  Tower  Co.  v.  UUman,  89  111.  244;  §  392. 

8  Post,  c.  6  ;  and  see  post,  c.  9  (connecting  carriers).  The  pertinence 
of  our  present  distinction  is  strongly  sliown  where  goods  are  accidentally 
destroyed  while  in  the  carrier's  possession,  but  before  transit;  fire  being 
a  casualty  against  which  one  insures  as  a  common  carrier,  but  not  as  a 
hired  custodian  or  warehouseman.  See  Nichols  v.  Smith,  115  JNIass.  332 
(ordinary  care  and  diligence  the  rule  as  to  compensated  warehousemen); 
Maybin  c.  South  Carolina  R.,  8  Rich.  (S.  C.)  240.  Cf.  7  Mich.  515;  30 
N.  Y.  5G4. 

4  §  393 ;  Hannibal  R.  v.  Swift,  12  Wall.  (U.  S.)  262  ;  May  v.  Hanson, 
5  Cal.  3G0;  Illinois  Central  R.  v.  Smyser,  38  111.  354.     Cf.  9  Wall.  517. 

5  Merritt  v.  Old  Colony  R.,  11  Allen  (Mass.),  80;  Kinuick  v.  Chicago 
R.,  69  Iowa,  665. 

6  Fordyce  v.  McFlynn,  56  Ark.  424;  111  N.  C.  592. 

As  to  delivery  by  apparatus,  tackling,  pipe,  etc.,  see  5  Blatchf. 
(U.  S.)  518;  4  Biss.  (U.  S.)  13;  §  396. 


BAILMENT   TO   THE   CARRIER  171 

312.  The  carriage  of  freight  by  water  affords  an  illustration 
of  our  rule  of  delivery  and  acceptance.  Whenever  property 
comes  into  control  of  the  water  carrier's  servants  for  present 
transportation,  the  carrier  risk  attaches;  and  this  does  not 
wait  for  the  thing  to  be  actually  put  on  board  where,  as  con- 
stantly happens,  fi'eight  is  received  by  the  carrier  on  a  wharf 
for  loading  up  the  vessel ;  or  so  as  to  be  taken  out  in  lighters 
while  she  lies  in  the  stream  at  anchor;  or  even  at  the  shipper's 
warehouse ;  provided  the  loading  and  stowing  be  under  the 
carrier's  direction.^  Still  more  clearly  is  the  vessel's  liability 
fixed  if  the  carrier  has  receipted  for  the  goods.^  Bills  of 
latling  or  way-bills  are  used  to  a  considerable  extent  in  rail- 
way or  other  land  traffic  as  also  in  water  transportation.^ 
Notwitlistanding  their  use,  the  question  as  between  shipper 
and  earlier  is  one  of  actual  delivery  of  the  goods  as  for 
immediate  transportation.* 

313.  A  carrier  by  ferry  is  usually  liable  as  common  carrier, 
from  the  time  he  admits  teams  upon  one  slip  until  they  are 
off  the  other.^  He  is  bound  to  keep  the  ferry  slips  in  good 
order,  as  well  as  the  boat  itself;  and  may  direct  what  position 

1  §  394;  British  Columbia  Co.  v.  Nettleship,  L.  R.  3  C.  P.  499;  The 
Barque  Edwin,  2i  How.  386;  28  Fed.  R.  (U.  S.)  202.  Under  such  cir- 
cumstances, if  goods  are  delivered  and  accepted  in  a  lighter  which  the 
carrier  hires  to  bring  goods  out  to  his  vessel,  and  the  lighter  exjjlodes 
before  it  reaches  the  ship,  the  carrier  must  respond  for  the  loss  of 
goods  thereby,  whatever  his  own  remedy  against  the  lighter.  24  How. 
380. 

2  lb.;  Greenwood  v.  Cooper,  10  La.  An.  796;  9  Wall.  (U.  S.)  517; 
64  Tex.  615.  As  to  bills  of  lading  used  in  water  carriage,  see  §  394; 
and  a  question  much  considered  is  whether  pretended  bills  of  lading 
shall  conclude  the  carrier  where  his  servant  connives  with  a  fraudulent 
consignor  as  regards  an  innocent  purchaser  or  holder  for  value.  See 
Grant  v.  Norway,  10  C.  B.  665 ;  Pollard  v.  Vinton,  105  U.  S.  7.  And  see 
c.  5,  post. 

2  See  Baltimore  &  Ohio  R.  v.  Wilkens,  44  Md.  11;  Armour  ;-.  Michigan 
Central  R.,  65  iST.  Y.  HI;  44  ]\Iinn.  224  (error  rather  than  fraud);  Fried- 
lander  V.  Texas  R.,  130  U.  S.  416;  154  U.  S.  155. 

*  93  Tenn.  314. 

5  §  395;  Willoughby  u.  Horridge,  12  C.  B.  742;  1  M'Cord,  157;  5 
Cal.  360. 


172  THE  LAW  OF  BAILMENTS 

persons  and  tlieir  carriages  shall  take  on  the  boat.^  Yet  the 
driver  who  has  not  actually  parted  control  of  his  team  to  the 
ferrj man  is  not  without  a  considerable  share  of  responsibility 
for  its  safety,  as  in  the  corresponding  instance,  where  one 
travels  upon  a  cattle-car,  in  charge  of  his  property ;  nor,  in- 
deed, would  the  animal's  own  nature  and  disposition  be  imma- 
terial in  such  an  issue  of  responsibility .^ 

314.  The  consignor  of  goods  and  chattels  has  correspondent 
duties  to  those  we  have  considered  which  rest  upon  the  carrier 
himself.  What  the  consignor  wishes  transported  should  be 
offered  for  that  purpose  to  the  right  carrier  at  a  reasonable 
time.  If  offered  as  freight,  he  should  be  ready  to  make  com- 
pensation in  advance  upon  the  carrier's  request.^  The  con- 
signor should  see  that  what  he  sends  is  plainly  and  legibly 
marked  in  some  way,  so  that  the  place  of  destination  may  be 
readily  known,  and  the  party  identified  who  should  receive  the 
goods ;  though  an  identification  by  marks,  and  description  in 
bills  of  lading  or  way-bills,  or  by  check  or  other  token,  will 
often  sufiice  for  practical  purposes,  as  transportation  business 
is  now  conducted;  and  certainly  he  should  not  misdirect 
what  he  sends.*  Again,  he  should  offer  his  goods  properly 
packed  according  to  their  nature  and  condition ;  for  he  is  liable 
for  losses  directly  due  to  his  own  bad  packing  as  well  as  to 
his  own  misdirection  or  misdelivery.^  So,  too,  he  should  make 
no  false  pretensions  of  ownership,  nor  practise  deception  as 
to  the  contents  of  the  package  he  delivers.^     Fraud  is  not  the 

1  Claypool  V.  McAllister,  20  111.  504;  5  Cal.  360. 

2  White  V.  Winnisiinmet  Co.,  7  Cush.  (Mass.)  155.     And  see  next  c. 

3  §  397 ;  ante,  292. 

^  Southern  Express  Co.  v.  Kaufman,  12  Heisk.  (Tenn.)  161;  Finn  v. 
Western  R.,  102  Mass.  283,  290;  1  Hilton  (N.  Y.),  223.  See  25  Ga. 
228;  Forsythe  v.  Walker,  9  Penn.  St.  148;  Stimson  v.  Jackson,  58  N.  H. 
138.  Where  the  carrier  has  no  means  of  knowing  the  destination  or  per- 
ceives that  there  is  a  misdirection,  he  may  wait  to  be  properly  informed. 
44  Iowa,  526;  P:rie  R.  v.  Wilcox,  84  111.  239;  24  Wis.  157. 

5  Baldwin  v.  London  R.,  9  Q.  B.  D.  582  ;  Shriver  v.  Sioux  City  R.,  24 
Minn.  506. 

*  American  Express  Co.  v.  Perkins,  42  111.  458 ;  §  397.  Money  and 
valuables  should   not  be  jiut  up  as  though  they  were  cheap  merchan- 


BAILMENT  TO  THE   CARRIER  173 

needful  basis  of  liability  if  damage  ensues  from  such  packing ; 
but  the  shipper's  negligence  often  proves  sufficient  to  charge 
him.  The  carrier  must,  however,  on  his  behalf,  have  exercised, 
in  all  these  cases,  such  care  as  befitted  the  apparent  nature 
and  worth  of  the  article  committed  to  him.^ 

315.  Indeed,  the  carrier's  duty  is  limited  to  transporting 
things  according  in  character  to  what  he  may  have  reason- 
ably supposed  them  to  be.^  The  limitations  of  this  doctrine 
wall  be  discussed  hereafter  ;  ^  but  we  here  add  that  it  is  held 
that,  when  the  appearance  of  the  package  is  such  as  to  arouse 
the  carrier's  suspicion  that  it  is  extra-hazardous,  he  may  re- 
quire a  knowledge  of  its  contents,  as  a  prerequisite  of  carry- 
ing it;  since  only  latent  matters  could  justify  him  in  setting 
up  the  shipper's  negligence  or  deception,  by  way  of  an  excuse 
for  loss  or  injury.*  So  the  carrier  may  ask  shippers  the  value 
of  packages  tendered,  with  a  view  to  determining  whether 
extra  rates  should  be  charged,  and  he  may  rely  upon  the 
answer  given,  by  way  of  limiting  his  risk,  unless  disproof 
were  patent ;  while,  on  the  other  hand,  the  'shipper  who  has 
practised  no  deception  or  improper  concealment  is  under  no 
obligation  to  volunteer  a  statement  of  contents  or  value.°' 

316.  The  consignor  should  make  a  full  delivery,  whether 
personally,  or  through  his  agents,  or,  in  other  words,  should 
yield  possession  and  immediate  control  of  the  property  to  the 
carrier.     What  falls  short  of  this,  so  as  to  import  rather  a 

dise,  nor  glass  and  explosives  delivered  as  articles  which  bear  rough 
handling. 

1  §  397;  Brass  r.  Maitland,  6  E.  &  B.  470;  11  C.  B.  n.  s.  553  ;  Boston 
&  Albany  R  v.  Shanly,  107  JNIass.  568;  Nitro-Glycerine  Case,  15  Wall. 
(U.  S.)  524. 

2  Crouch  V.  London  R.,  14  C.  B.  255;  NitroGlycevine  Case,  15  Wall. 
(U.  S.)  524.  And  see  §  315;  3  W.  &  S.  (Penu.)  21;  Phillips  v.  Earle,  8 
Pick.  (Mass.)  182. 

3  See  next  chapter. 

*  Field,  J.,  in  Xitro-Glycerine  Case,  15  AVall.  524 ;  New  Jersey  R.  v. 
Pennsylvania  R.,  27  N.  J.' L.  100;  Wiggin  v.  Boston  &  Albany  R.,  120 
Mass.  201. 

5  Little  V.  Boston  &  Maine  R.,  66  Me.  239;  Merchants  Desp.  Trans. 
Co.  V.  Bolles,  80  111.  475;  1  Pick.  (Mass.)  50. 


174  THE   LAW   OF   BAILMENTS 

retention  of  custody  on  his  part,  or  the  trust  of  his  own  agents, 
instead  of  the  carrier,  leaves  a  hiatus  in  tlie  bailment  de- 
livery ;  for  the  carrier  must  have  been  trusted,  in  order  to 
become  fully  liable.^ 

317.  A  mixed  responsibility,  however,  is  found  in  various 
instances,  where  freight  or  baggage  is  conveyed,  and  the 
consignor  or  his  agent  accompanies  it,  exercising  a  certain 
control.  For  one  who  seeks  to  recover  from  another  for  a 
loss  or  injury  inflicted  upon  him  in  person  or  property  must 
not,  by  his  own  want  of  ordinary  care  or  his  misconduct,  appear 
to  have  contributed  to  that  loss  or  injury.  As  in  packing, 
marking,  and  bringing  his  goods  into  the  possession  of  the 
public  carrier  for  a  particular  undertaking  towards  them,  so, 
too,  in  partaking  of  their  care  on  the  journey,  if  he  does  so, 
the  customer  is  bound  to  be  honest,  and  to  bestow  ordinary 
diligence  within  whatever  happens  to  be  the  sphere  of  his 
chosen  opportunity .^ 

1  §  399;  6  Bing.  743;  Dunlap  v.  Steamboat  Co.,  98  Mass.  37L 

2  §  400;  Talley  v.  Great  Western  K.,  L.  R.  6  C.  P.  44;  Le  Conteur  v. 
London  R.,  L.  R.  1  Q.  B.  547;  111  Mass.  142 ;  1  Q.  B.  D.  42.  A  drover 
goes  to  take  care  of  animals  transported;  a  ferryman  has  charge  of  his 
horse  and  team  driven  on  board ;  a  passenger  looks  after  his  hand  bag- 
gage, etc.     See  next  chapter.  ^Ly 


CHAPTER  IV. 

BAILMENT  RESPONSIBILITY  OF  THE   COMMON  CARRIER. 

318.  Upon  the  instant  a  thing  is  delivered  on  hire  to  a  Com- 
mon carrier  as  for  present  or  immediate  transportation,  and 
accepted  by  himself  or  his  agents  in  conformity  Avith  snch  an 
undertaking,  the  duties  and  rights  of  a  public  relation  will 
attach  thereto  at  the  common  law.  Whether  it  remains  in 
quiet  custody  until  he  can  perform  the  journey,  or  is  ready 
to  be  sent  at  once,  —  whether  it  requires  to  be  loaded  by  the 
carrier  upon  a  car  or  vessel  and  stowed  away,  or  is  already  on 
board  and  in  place,  —  the  carrier  has  now  assumed  towards 
the  chattel  thus  consigned  to  him  a  perilous  and  exceptional 
responsibility,  which  must  in  general  continue  until  the 
thing  safely  reaches  its  destination,  and  his  carriage  under- 
taking, under  the  bailment  and  bailment  contract,  becomes 
fully  performed,  so  far  as  may  be.  But  the  responsibility  or 
risk  incurred  at  the  common  law  is  one  thing,  and  the  duty 
another.  To  separate  these  two  ideas  will  be  found  conven- 
ient, as  our  investigation  proceeds.  As  to  his  duty,  the 
common  carrier  is  a  bailee  for  hire,  bound  to  the  ordinary 
or  average  standard  of  performance.  The  legal  responsibility, 
however,  transcends  all  considerations  of  care  and  diligence, 
on  his  part,  as  we  shall  presently  see ;  making  him  an  insurer, 
virtually,  in  many  instances,  aside  from  the  qualifying  ele- 
ments to  be  noted  in  our  next  chapter.^ 

319.  First,  then,  as  to  his  duty,  the  common  carrier  is  bound 
to  have  his  customer's  property  fitly  loaded  and  stowed,  and 
to  carry  it  in  vehicles  which  are  reasonably  strong,  tight,  and 
serviceable  for  the  purpose  intended;  this,  however,  only 
with  reference  to  the  nature  and  value  of  the  chattel  as  dis- 

1  §  401.     ' 


176  THE  LAW   OF  BAILMENTS      ' 

closed  to  the  carrier  by  its  appearance  or  otherwise,  and 
applying  the  ordinary  or  average  standard  of  care  and  dili- 
gence in  the  particular  calling.  He  must  keep  things  properly 
packed  and  stowed  and  not  carelessly  shift  them  about.  The 
propelling  force  must  be  fit  and  adequate  for  the  common 
emergencies  of  the  particular  transit ;  and  the  carrier  must 
man,  equip,  and  provide  the  propelling  faculties  with  reason- 
able prudence  and  foresight.  In  manning  and  equipping,  the 
carrier  need  not  provide  against  unusual  exigencies,  but  only 
those  which  ordinary  prudence  forecasts  ;  for,  in  these  and  all 
other  respects,  his  obligation  is  presumably  commensurate 
with  the  exercise  of  a  reasonable  care  and  discretion,  such 
as  those  ordinarily  careful  in  the  vocation  would  bestow.^ 
As  a  rule,  the  mode  of  carriage  is  taken  to  be  limited  and 
defined,  as  to  the  power  and  kind  of  vehicle,  by  the  carrier's 
public  undertaking.^ 

320.  In  carrying  the  goods  to  their  destination,  the  common 
carrier  and  his  servants  are  bound  to  transport,  with  reason- 
able despatch,  and  by  the  prescribed  or  his  customary  route. ^ 
He  must  take  care  that  the  goods  be  kept,  after  their  kind, 
well  stowed,  secured,  and  sheltered  throughout  the  transit,  so 
as  not  to  suffer  undue  waste,  decay,  or  diminution  ;  that  the 
vehicle  and  motive  power  fail  not  from  want  of  the  usual  skill 
or  fair  precaution  ;  that  the  transit  be  made  over  clear  tracks 
or  an  unobstructed  course,  so  far  as  ordinary  discretion  on 
his  part  can  make  it  such ;  and,  at  the  last,  that  the  property 
be  delivered  over  rightfully,  with  reasonable  despatch,  and 
according  to  the  just  sense  of  his  particular  bailment  under- 

1  §  402;  Kopitoff  v.  Wilson,  1  Q.  B.  D.  377;  Schmidt  v.  Chicago  R., 
83  111.  405;  Propeller  Niagara  v.  Cordes,  21  How.  (U.  S.)  8;  Branch  v. 
Wilmington  R.,  77  N.  C.  347;  Alabama  R.  r.  Searles,  71  Miss.  7U. 

-  Fraser  v.  Tel.  Construction  Co.,  L.  R.  7  Q.  B.  5(56;  Merrick  v. 
Webster,  3  Mich.  268.  As  to  the  implied  warranty  of  fitness  of  the  vessel 
or  other  vehicle  ('whose  standard  is  "  ordinary  "),  see  L.  R.  2  Q.  B.  D.  412  ; 
The  Northern  Belle,  9  Wall.  (U.  S.)  526 ;  Kopitoff  v.  Wilson,  1  Q.  B.  D. 
377 ;  Gibson  v.  Small,  4  II.  L.  C.  353. 

8  §  403;  Hales  v.  London  R.,  4  B.  &  S.  66  ;  7  Blackf.-(Ind.)  497;  Harris 
V.  Northern  Indiana  R.,  20  N.  Y.  232;  37  La.  Ann.  468. 


BAILMENT  RESPONSIBILITY   OF  COMMON  CARRIER       177 

taking.!  While  deviations  from  the  agreed  or  customary 
route,  if  made  without  good  excuse,  must  place  the  carrier  in 
the  predicament  of  having  to  answer  for  all  the  ill  conse- 
quences which  may  ensue  from  his  bieach  of  contract,  a  devi- 
ation from  necessity,  especially  in  a  sea  voyage,  ought  to  be 
and  is  more  lightly  visited.^ 

321.  Should  disaster  overtake  him  during  the  transit,  the 
common  carrier  is  bound  to  lessen  its  injurious  effects  by  pur- 
suing a  reasonable  course  of  conduct  towards  the  property 
placed  under  his  charge  for  carriage.^  He  ought,  if  the  goods 
be  still  worth  transporting,  to  repair  the  vehicle  and  then  pro- 
ceed on  his  way,  or  else  to  transship  them  ;  if  delayed  long, 
he  should  temporarily  store  and  shelter  them  ;  and  he  should 
neither  needlessly  abandon  the  goods  nor  expose  them  care- 
lessly to  damage ;  all  this  according  to  his  opportunity  and  in 
the  exercise  of  ordinary  discretion  and  prudence  under  the 
peculiar  exigency.  And,  after  the  same  measure  of  sound 
good  sense,  should  he  apply  the  proper  means  of  preserving 
from  destruction  whatever  may  remain ;  as  in  drying,  repack- 
ing, repairing,  and  separating  the  spoiled  from  the  unspoiled.* 
But  he  would  not  be  justified  in  sending  forwaixl,  merely  for 
the  sake  of  earning  his  hire,  that  which  plainly  is  too  far 
damaged  to  be  worth  to  its  owner  the  cost  of  further  trans- 
portation ;  but  should  rather  send  for  instructions,  or  else 
sell  it  on  the  spot  for  what  it  will  bring ;  for  he  is  bound  to 

1  §  403  ;  5  East,  428;  Hastings  v.  Pepper,  11  Pick.  (Mass.)  428.  But 
a  carrier  is  not  obliged  to  carry  goods  strictly  in  the  order  he  receives 
them;  nor,  on  the  other  hand,  to  favor  unduly  one  kind  of  property  to 
the  detriment  of  another.  Dixon  r.  Chicago  R.,  04  Iowa,  531 ;  70  N.  Y. 
305  ;  Peet  c.  Chicago  R.,  20  Wis.  594  (perishable  goods). 

2  §  403;  The-Maggie  Hammond,  9  Wall.  (U.  S.)  435;  11  Fed.  (U.  S.) 
179;  12  Conn.  410;  4  Whart.  (Penn.)  204;  (1891)  1  Q.  B.  605. 

8  Hales  V.  London  R.,  4  B.  &  S.  60;  Phillips  v.  Brigham,  26  Ga.  617  ;  2 
Sprague  (U.  S.),  31  ;  The  Jason,  28  Fed.  R.  323.  And  see  Kinnick  c. 
Chicago  R.,  69  Iowa,  665. 

*  §  404  ;  Propeller  Niagara  v.  Cordes,  21  How.  (U.  S.)  7 ;  12  La.  Ann. 
410 ;  Houston  R.  ;;.  Harn.  44  Tex.  628;  The  Maggie  Hammond,  9  Wall. 
435;  Chouteaux  v.  Leech,  18  Penn.  St.  224  ;  1  Mo.'81 ;  13  Mo.  App.  415; 
72  Miss.  891. 

12 


178  THE   LAW   OF   BAILMENTS 

regard  his  customer's  interests  as  well  as  his  own  in  such  a 
calamity.! 

322.  A  carrier  delayed  -with  his  goods  from  some  cause  for 
which  the  law  will  excuse  him  should,  when  that  cause  ceases 
to  operate,  proceed  onward  and  complete  the  transit,  if  the 
interests  of  the  owners  of  the  goods  so  require.^  And  his 
inexcusable  failure  to  put  the  goods  in  transit  at  all,  or  his 
want  of  ordinary  foresight  in  receiving  goods  which  were  not 
likely  to  go  through  safely  unspoiled  and  uninjured,  will 
charge  a  carrier  with  all  the  damaging  consequences.^  For 
mere  delay,  reasonable  in  the  course  of  events,  courts  are  not 
disposed  to  visit  the  carrier  harshly  nor  to  pronounce  a  delay 
unreasonable  without  reference  to  the  circumstances.*  In 
absence  of  a  special  undertaking  on  his  part  the  carrier  is  to 
transport  presumably  within  a  reasonable  time  after  the  goods 
are  delivered  him,  and  with  reasonable  expedition,  all  cir- 
cumstances considered ;  but  a  special  undertaking  exacts 
special  fulfilment.^ 

323.  An  unreasonably  premature  shipment  as  well  as  unrea- 
sonable delay  will  render  the  carrier  liable  for  resulting  ill 
consequences.^ 

324.  But  the  carrier's  legal  liability  is  distinguishable  from 
the  measure  of  his  duty,  though  the  latter  becomes  in  many 

1  Notara  v.  Henderson,  L.  R.  5  Q.  B.  346 ;  s.  c.  L.  R.  7  Q.  B.  225. 
The  wisdom  of  a   transshipment  depends  on  circumstances;  and  the 

relation  to  his  customers  should  be  considered.  Lemont  v.  Lord,  52  Me. 
365  ;  Steamboat  Lynx  v.  King,  12  Mo.  272  (general  welfare  of  shippers) ; 
33  Ala.  713. 

2  Lowe  V.  Moss,  12  111.  477. 

8  §  404;  1  Bush  (Ky.),  32;  Clarke  r.  Needles,  52  Penn.  St.  338;  Tier- 
ney  v.  N.  Y.  Central  R.,  76  N".  Y.  305  ;  63  Iowa,  611 ;  Dixon  ;;.  Chicago  R., 
64  Iowa,  531 ;  Collier  v.  Swinney,  16  Mo.  484 ;  Sumner  v.  Charlotte  R., 
78  N.  C.  289;  107  N.  C.  76. 

"  Ante,  296. 

6  As  in  undertaking  to  forward  by  a  specified  date  or  train.  Corbett 
V.  Chicago  R.,  86  Wis.  82;  Cantwell  v.  Pacific  Express  Co.,  58  Ark.  487. 
An  absolute  contract  to  transport  is,  at  the  utmost,  only  suspended  by 
superhuman  necessity.     Collier  v.  Swiney,  16  Mo.  484. 

«  Campion  v.  Canadian  R.,  43  Fed.  (U.  S.)  775. 


BAILMENT   RESPONSIBILITY   OF   COMMON   CARRIER       179 

instances  an  important  ingredient,  as  we  shall  see.  Our  pres- 
ent bailment  is  not  an  exceptional  one  in  the  sense  of  requir- 
ing the  exercise  of  an  exceptional  degree  of  diligence.  Public 
policy  under  the  common  law  takes  a  higher  plane ;  and, 
without  asking  whether  a  certain  loss  or  injury  occasioned  to 
property  which  was  consigned  for  carriage  to  one  who  exer- 
cised a  public  vocation  in  conveying  it  imputes  to  him  actual 
diligence  or  negligence,  actual  blame  or  blamelessness,  pro- 
nounces him  legally  answerable  therefor,  unless  he  can  clear 
himself  by  bringing  the  loss  or  injury  within  certain  stated 
exceptions.  It  makes  the  common  carrier,  in  other  words,  a 
virtual  insurer  against  all  risks  of  loss  or  injury  save  those 
(1)  of  loss  or  injury  by  act  of  God,  and  (2)  of  loss  or  injury 
by  a  public  enemy ;  to  which  modern  precedent  justifies  us 
in  adding,  (3)  of  loss  or  injury  by  act  of  the  owner  or  con- 
signor of  the  goods,  since  common  justice  demands  that 
the  carrier's  customer  shall  suffer  for  his  own  faults.  One 
more  exception  this  writer  ventures  to  add,  in  advance  of 
judicial  announcement,  viz.,  (4)  of  loss  or  injury  by  the 
public  authority .1 

325.  As  regards  the  two  former  exceptions,  our  law  has 
fastened  upon  these  not  simply  for  the  reason  that  the  cause 
of  loss  is  irresistible,  —  for  so,  too,  might  be  the  scattering  of 
the  carrier's  goods  by  a  mob,  or  their  destruction  by  an  acci- 
dental fire, —  but  because  calamities  like  these  are  matter  of 
])ublic  notoriety,  open  to  investigation,  and  such  as  no  carrier 
would  be  likely  to  draw  upon  himself  by  corrupt  collusion 
with  individuals  or  fraud  upon  his  customer.  Here  we  may 
perceive,  as  in  the  case  of  innkeepers,  the  operation  of  a  prin- 
ciple whereby  the  public  bailee  is  invested  with  a  responsibil- 
ity which  no  degree  of  prudence  or  forethought  on  his  own 
part  can  wholly  confine.^ 

1  §  405. 

2  §  405. 

"  And  this  is  a  politic  establishment,  contrived  by  the  policy  of  the  law 
for  the  safety  of  all  persons  the  necessity  of  whose  affairs  obliges  them 
to  trust  these  sorts  of  persons,  that  they  may  be  safe  in  their  ways  of  deal- 
ing ;  for  else  these  carriers  might  have  an  opportunity  of  undoing  all  per- 


180  THE   LAW   OF   BAILMENTS 

326.  Usage,  special  contract  and  legislation  mitigates,  as  we 
shall  see  later,  the  ancient  rigor  of  the  carrier  law,  especially 
as  regards  our  modern  railways,  steamships,  and  saiUng  vessels.^ 

sons  that  had  any  dealings  with  them  by  combining  with  thieves,  etc.,  and 
yet  doing  it  in  such  a  clandestine  manner  as  would  not  be  possible  to  be  dis- 
covered. And  this  is  the  reason  the  law  is  founded  upon  in  that  point.'' 
Lord  Holt,  C.  J.,  in  Coggs  v.  Bernard,  2  Ld.  Rayin.  9(»9,  91S.  And  see 
Best,  C.  Jj,  later  in  Riley  y.  Ilorne,  5  Bing.  217,  220  ;  Nelson,  J.,  in  G  How. 
(U.  S.)  344  ;  Hubbard,  J.,  in  Thomas  v.  Boston  R.,  10  Met.  (Mass.)  472, 
476;  Bronson,  J.,  in  19  Wend.  (N.  Y.)  234;  Sergeant,  J.,  in  2  Watts 
(Penn),  443;   21  Wis.  21;    22    N.  J.   L.  372. 

Under  this  ensign  the  courts  of  England  and  America  have  rallied  for 
centuries  ;  yet  there  is  reason  to  believe  that  a  conservative  regard  for 
ancient  preied^it,  and  a  disposition  to  rest  on  the  popular  side  of  the 
controversy,  h  ive  kept  the  carrier's  responsibility  wound  to  this  pitch, 
more  than  an  unshaken  conviction  of  the  justice  and  necessity  of  the 
rule,  whatever  changes  in  society  or  in  the  modes  of  transportation  time 
might  bring.  Consistency  drove  our  courts  to  declaring  ships  at  sea  pub- 
lic carriers  in  this  sense  of  public  insurers  ;  but  how  slight  the  chance 
here  of  plunder  by  fraud  or  collusion  when  compared  with  that  "  poor 
carrier"  who  travelled  by  himself  over  lonely  roads  infested  by  maraud- 
ers, and  whose  hard  lot,  should  he,  an  honest  fellow,  happen  to  be  robbed 
without  any  defavdt  whatever  on  his  part.  Lord  Holt  could  not,  out  of  his 
humanity,  help  pitying.  Modern  business  metliods,  modern  inventions, 
modern  customs,  have  all  reduced  the  carrier's  opportunities  for  clandes- 
tine plunder  of  his  customers  quite  as  low,  it  may  be  thought,  as  those  of 
depositaries,  commission  merchants,  and  a  host  of  others  who  were  never 
put  in  this  pillory  of  public  policy.  The  carriage  of  property  is  now  or- 
ganized on  an  immensa ..scale,  engaging  numerous  servants,  conducted 
with  much  publicity,  choosing  often  for  managers  men  whose  names  ought 
to  inspire  confidence  among  their  fellow-citizens,  and  who,  at  all  events, 
would  not  be  suspected  of  plundering  the  merchandise  they  conveyed. 
With  the  introduction  of  steam,  and  of  traffic  by  railway  more  especially, 
we  find  the  Anglo-Saxon  rule  put  to  a  harder  strain  in  the  last  fifty  or 
seventy-five  years  than  during  all  the  preceding  centuries  of  inland  carriage 
put  together.  The  distrustful  feeling  towards  common  carriers  wliich 
modern  experience  engenders  among  consignors  is  not  so  much  that  of 
petty  pilfering  on  their  part,  as  of  overbearing  and  extortionate  conduct, 
and  negligent  and  reckless  transportation.  Except  for  some  need  of 
an  advantage  to  the  pigmy  who  contends  against  a  giant,  and  a  certain 
dread,  among  the  people,  lest  our  ministers  become  our  masters,  it  is  likely 
that  the  old  maxims  would,  ere  this,  have  spent  considerable  of  their 
j'listine  force. 

^  §  408.     See  c.  5,  post. 


BAILMENT  RESPONSIBILITY   OF   COMMON   CARRIER       181 

The  influence  of  modern  insurance  as  a  special  pursuit  is  also 
felt.i 

327.  Loss  or  injury  by  act  of  God  constitutes  the  first  legal 
exception  to  a  carrier's  risk  of  transportation,  A  loss  by  "  act  of 
God  "  signifies  such  irresistible  disaster  as  results  immediately 
from  natural  causes,  and  is  in  no  sense  attributable  to  human 
agency.^  The  current  of  the  decisions  serves  to  confirm  the 
strict,  if  not  precisely  literal,  construction  put  upon  this  term 
by  our  eai'lier  jurists ;  a  term  which  indicates  that  which  man 
neither  produces  nor  can  contend  against,  a  natural  necessity, 
as  the  carrier's  sole  ground  of  justification  under  the  present 
liead,  and  not  merely  some  calamity  which  human  intervention 
so  brought  about  that  the  carrier  was  unable  to  escape  it, 
and  which  human  instrumentality  might  have  altogether  pre- 
vented. Accidents  attributable,  while  the  carrier  pursues  his 
line  of  duty,  to  lightning,  tempest,  earthquake,  flood,  and 
sudden  death,  afford  the  usual  instances  of  disaster  which  the 
common  law  recognizes  as  the  "•act  of  God."  ^  Damage 
caused  by  rain,  stress  of  bad  weather,  snow,  freezing,  thawing, 
rough  winds,  and  the  like,  are  also  referable  to  this  head.* 
But,  since  the  less  sudden  and  violent  action  of  the  elements 
may  better  be  foreseen  by  prudent  men,  and  guarded  against, 
or,  at  all  events,  kept  from  doing  their  worst,  the  carrier  is 
here  less  readily  excused  than  before.^ 

1  §  409;  ]0  Rich.  (S.  C.)  113:  81  Tex.  605.  A  carrier  must  run  his 
usual  risk,  notwithstanding  insurance.  AVillock  y.  Raih-oad,  106  Penn.  St. 
18i. 

'•^  §  410.  The  civil  law  employs  a  corresponding  term,  vis  major.  But 
"inevitable  accident"  is  by  no  means  synonymous  with  "  act  of  God." 
since  this  might  be  human  in  its  origin.  1  T.  K.  27,  33;  4  Doug.  280, 
per  Lord  Mansfield.     And  see  Wright  J. ,  in  Merritt  v.  Earle,  29  N.  Y.  1 15. 

8  §  410;  1  T.  R.  27  ;  Nugent  v.  Smith,  1  C.  P.  D.  19,  423  ;  Railroad 
Co.  V.  Reeves,  10  Wall.  (U.S.)  170 ;  Michaels  v.  New  York  R.,  30  N.  Y.  504  ; 
4  Ilarring.  (Del.)  448,  449  ;  21  Wend.  (N.  Y.)  190  ;  Denny  v.  New  York 
Central  R.,  13  Gray  (Mass.),  481  ;  Morrison  v.  Davis,  20  Penn.  St.  171 ; 
Powell  V.  Mills,  30  :Mi.ss.  231  ;  0  Heisk.  (Tenn.)  261  ;  Slater  v.  South  Caro- 
lina R.,  29  S.  C.  96  (earthquake). 

*  Empire  Trans.  Co.  v.  Wallace,  68  Peim.  St.  302  ;  30  Neb.  197. 

8  40  Mo.  491 ;  Vail  v.  Pacific  R.,  63  Mo.  230  (snowstorm,  blocking  the 


182  THE   LAW   OF   BAILMENTS 

328.  But  losses  by  fire  are,  generally  speaking,  not  to  be 
excused  as  the  "act  of  God."  To  have  to  insure  against  this 
risk  is,  perhaps,  the  harshest  infliction  which  our  common  car- 
rier must  bear ;  jet  to  their  rule  in  this  respect  the  courts 
have  firmly  adhered.  The  ground  taken  appears  to  be  that  a 
fire,  whatever  may  have  caused  its  spread,  and  however  far  it 
may  have  outrun  the  control  of  those  who  started  the  first 
spark,  originates  in  human  agency,  and  not  independently  of 
it.i  Hence  the  common  carrier,  by  land  or  water,  though  free 
from  all  complicity  in  the  disaster,  energetic  in  repelling  the 
flames,  vigilant  and  prompt  in  the  moment  of  danger,  must 
answer  for  his  customer's  goods  so  injured  or  destroyed.  For, 
as  against  fires,  accidental  or  otherwise,  he  is  pronounced  an 
insurer.^  As  in  the  case  of  fire,  loss  from  the  explosion  of  a 
steam  boiler  is  also  inexcusable  ;  for  this  originates  in  human 
and  not  divine  agency,  so  that  the  carrier  is  here  afforded  no 
claim  of  exemption  from  the  risk  of  insurer.^ 

329.  The  causation  of  a  disaster  is  in  other  cases  scrutinized, 
so  as  to  distinguish  between  what  is  the  immediate  result  of 
human  and  what  of  divine  or  natural  agency.*     And  on  all 

track);  14  Wend.  (X.  Y.)  215  (freezing  of  river  or  canal);  23  "Wend. 
(N.  Y.)  300  ;  4  N.  H.  259;  Swetland  v.  Boston  &  Albany  R.,  102  Mass. 
276,  283;  Colt  v.  M'Mechen,  6  Johns.  (X.  Y.)  160  (sudden  failure  of 
wind). 

1  §  411;  1  T.  R.  27;  5  T.  R.  389  ;  4  Bing.  N.  C.  314;  Morewood  v. 
Pollok,  1  El.  &  Bl.  743;  Hale  v.  New  Jersey  Steam  Nav.  Co.,  15  Conn. 
539;  Parker  v.  Flagg,  26  Me.  181  ;  INIoore  v.  IMichigan  R.,  3  ]\Iich.  23  ; 
Cox  V.  Peterson,  30  Ala.  608;  Graff  v.  Bloomer,  9  Penn.  St.  114  ;  1  Sm. 
&  Marsh.  (Miss.)  279  ;  Chevallier  v.  Straham,  2  Tex.  115;  15  Col.  333. 

2  §  411.  Of.  Miller  v.  Steam  Hav.  do.,  6  Seld.  (X.  Y.)  431  ;  Penn.  R. 
V.  Fries,  87  Penn.  St.  234.  Where  the  immediate  cause  of  the  loss  by  fire 
was  a  tornado  or  lightning  stroke,  this  would  properly  be  "an  act  of 
God."  lb.  So  too,  as  it  appears,  wlien  the  case  is  purely  one  of  spon- 
taneous combustion. 

3  'I'he  Barque  Edwin,  24  IIow.  (U.  S.)  386;  1  Cliff.  322;  1  Sprague, 
477;  5  Strobh.  (S.  C.)  119;  The  Moliawk,  8  Wall.  (U.  S.)  153. 

*  §  413.  Striking  upon  some  hidden  and  unknown  rock,  snag,  shallow, 
or  bar,  or  even  some  recent  formation  under  water,  has  thus  been  excused. 
WilliairiS  v.  Grant,  1  Conn.  487 ;  Steele  v.  McTyer,  31  Ala.  607.  But  cf. 
Friend  v.  \Vood3,  6  Gratt.  (Va.)  189.     But  a  disaster  which  is  due  to  the 


I 


BAILMENT   RESPONSIBILITY   OF   COMMON   CARRIER       183 

occasions  the  exercise  of  ordinary  care  and  diligence  on  the 
carrier's  part  is  imperative,  as  we  shall  perceive  presently. ^ 

330.  Accidents  in  navigation,  which  one  may  attribute  to  a 
display  of  false  lights,  the  drifting  of  a  buoy,  or  the  removal 
of  a  beacon,  are  not  devoid  of  human  agency,  though  the 
navigator  and  carrier  himself  were  blameless.  Nor,  to  lay 
down  a  broad  principle,  is  any  loss  on  which  a  carrier  might 
found  his  own  action  for  damages,  because  of  another  party's 
wrong,  fitly  pronounced  to  be  an  "  act  of  God."  A  collision 
of  vessels,  therefore,  not  brought  on  immediately  by  tempest 
or  other  natural  accident,  ought,  upon  good  reasoning,  to  be 
taken  as  insufficient  reason  of  exemption  for  a  carrier  to  allege 
under  the  present  head,  notwithstanding  his  own  vessel  was 
blameless.^  And  the  same  may  be  affirmed  of  trains  which 
collide  on  a  railway  track,  or  stages  which  run  into  one  another, 
if  they  belong  to  different  carriers. 

331.  Whether  the  action  of  animate  nature  to  the  injury  of 
goods  may  ever  excuse  a  carrier  is  not  clearly  stated  by  author- 
ity. Such  agency  may  not  be  human,  but  to  attribute  it  to 
natural  necessity  and  bring  it  within  our  exception  is  another 
matter.^ 

sinking  of  an  anchor,  a  mast,  a  boa  ,  a  cable,  a  cargo,  or  the  like,  is  due 
presumptively  to  human  and  not  divine  intervention,  and  this  does  not 
excuse.  21  Wend.  (N.  Y.)  100  ;  Merritt  v.  Earle,  29  N.  Y.  115;  New 
Brunswick  Steamboat  Co.  v.  Tiers,  21  N.  J.  L.  697. 

The  effect  of  a  sudden  strike  may  be  such  as  to  excuse  a  reasonable 
delay  to  supply  the  places  of  the  skilled  employes ;  but  this  does  not  ex- 
cuse as  an  "act  of  God."  Blackstock  v.  New  I'ork  &  Erie  R.,  1  Bosw. 
(N.  Y.)77;  20  N.  Y.  48 ;  §412. 

^  §  413.  Where  a  hidden  rock,  bar,  shoal,  or  snag  was  generally  known 
and  prudent  navigators  knew  how  to  avoid,  this  does  not  excuse  as  a 
natural  cause.  Friend  r.  Woods,  6  Graft.  (Va.)  189  ;  Collier  r.  Valentine, 
11  Mo.  299  ;  5  Harring.  (Del.)  238.  And  whenever  the  formation  is  re- 
duced to  chart,  one  is  not  readily  relieved  of  his  legal  liability. 

^  §414;  McArthur  v.  Sears,  21  Wend.  190;  Reaves  v.  Waterman,  2 
Speer  (S.  C),  197  ;  Plaisted  v.  Bo.ston  Steam  Nav.  Co.,  26  Me.  132  ;  Mershon 
V.  Hobensack,  2  Zab.  (N.  J.)  372. 

But  whether  collisions  may  not  come  within  such  special  contract  ex- 
ceptions as  "perils  of  the  sea,"  or  "dangers  of  navigation,"  see  post. 

^  §  415;  Laveroni  i\  Drury,  8  Ex.  166  (destruction  by  common  vermin)  ; 


184   .  THE   LAW   OF   BAILMENTS 

332.  But  losses  due  to  the  natural  decay,  deterioration, 
and  waste  of  the  things  carried  are  excusable ;  and  such 
spoliation,  also,  as  may  be  fairly  attributed  to  the  ordinary 
wear  and  tear  of  the  journey ;  all  this,  however,  with 
reference  to  the  nature  and  inhei-ent  qualities  of  the  arti- 
cles in  question,  their  unavoidable  exposure  at  the  time 
and  place  and  under  the  general  circumstances,  while  in 
charge  of  a  carrier  of  ordinary  prudence,  and  the  condition 
in  which  the  shipper  may  have  chosen  to  intrust  them  to 
the  carrier  for  the  particular  transportation.^  The  broad 
ground  of  all  such  exemption  is  "  act  of  God ; "  or,  in  otlier 
words,  that  natural  causes  must  be  allowed  their  natural 
and  inevitable  operation  during  the  accomplishment  of  the 
bailment  purpose,  provided  the  bailee  pursue  his  course 
with  ordinary  care  and  diligence.  This  doctrine  may  often 
be  found  reinforced  by  that  other  reason  of  exoneration  to  be 
later  discussed,  the  fault  of  the  owner  or  customer  himself. 
For  the  common-sense  of  carriage  undertakings  forbids  that 
the  carrier  should  warrant,  by  implication,  the  quality  of  what 
he  simply  conveys  for  the  true  owner,  be  things  better  or 
worse,  and  more  or  less  capable  of  bearing  the  exposure  of 
the  journey.^ 

333.  Whether  jettison  by  a  carrier  will  render  him  liable  for 
the  loss  so  occasioned  depends  upon  circumstances.     Under 

Kay  V.  Wheeler,  L.  R.  2  C.  P.  302 ;  59  Fed.  (U.  S.)  617  ;  1  T.  R.  27 
(destruction  by  worms)  ;  The  Northern  Belle,  9  Wall.  (U.  S.)  526  ; 
Kopitoff  V.  Wilson,  1  Q.  B.  D.  377.  If  the  carrier  were  careless,  the  more 
surely  is  he  inexcusable. 

^  §  416.  As  where  liquids  evaporate,  effervesce,  sour,  or  burst  the 
bottles,  or  leak  out  of  the  casks  (see  338,  post),  the  carrier  is  not 
answerable  if  not  remiss  in  his  duty.  2  H.  &  N.  575 ;  6  Watts  (Penn.), 
424;  Powell  v.  Mills,  37  Miss.  492.  Or  where  meats  taint,  lard  melts, 
fruits  decay,  or  eggs  grow  stale.  12  How.  (U.  S.)  272;  12  Ga.  566; 
Swetland  v.  Boston  &  Albany  R.,  102  Mass.  276;  1  Black.  (U.  S.) 
156,  170. 

'^  §  416.  Observe  pout  the  same  principle  applying  to  the  death,  sick- 
ness, or  self-inflicted  injury  of  animals  which  are  carried.  The  carrier 
is  no  insurer  against  loss  or  injury  such  as  results  from  natural  and 
inherent  qualities. 


BAILMENT  RESPONSIBILITY  OF   COMMON  CARRIER       185 

justifying  conditions  jettison  may  be  ascribed  to  act  of  God.^ 
But  where  the  jettison  springs  out  of  no  such  divine  or  natural 
necessity,  but  is  resorted  to  under  circumstances  of  human 
com[)ulsion,  or  because  of  some  strait  into  which  the  carrier's 
imprudence  has  brought  him,  or  carelessly  or  wantonl}*,  the 
carrier  should  be  made  to  suffer  for  it.^ 

334.  Loss  or  injury  by  public  enemies  constitutes  the  second 
exception  to  the  carrier's  liability  for  loss  or  injury.  "  Pub- 
lic enemies,"  in  this  connection,  are  those  with  whom  the 
government  which  prescribes  these  conditions  of  carriage  con- 
tract is  at  open  war.^  This  is  what  the  expression,  more 
familiar  in  the  mother  country,  of  "  king's  enemies,"  or 
"queen's  enemies,"  properly  signifies.  Under  our  American 
system,  the  constitution  plainly  gives  the  supremacy  as  to 
declaring  and  dealing  with  public  enemies  to  the  United 
States,  or  the  Federal  head.  With  abundant  reason,  the 
Confederate  insurgents  of  1861,  with  whom  the  Union  waged 
open  war,  have  been  styled  "  public  enemies,"  thus  affording 
to  our  carriers  a  rule  of  practical  immunity  in  certain  cases 
which  simple  justice  demanded.^  Hostile  tribes  of  Indians,  too, 
on  our  borders,  may  well  be  regarded  as  "  public  enemies," 
though  their  status  with  reference  to  the  government  is  a 
peculiar  one.^ 

335.  But  the  violence  of  mobs,  rioters,  and  insurgents  within 
a  sovereign  jurisdiction  does  not  constitute  a  cause  of  exemp- 
tion within  the  meaning  of  the  term  "  public  enemies."  ^    This 

1  See  2  Bulst.  280:  Gillett  i-.  Ellis,  11  111.  579;  Price  v.  Hartshorn,  44 
N.  Y.  94. 

2  The  Portsmouth,  9  Wall.  (U.  S.)  682;  17  How.  (U.  S.)  100;  The 
Delaware,  14  Wall.  (U.  S.)  579  ;   §  417. 

8  §  418;    Russell  v.  Niemann,  17  C.  B.  N.  s.  162  ;  2  Ld.  Raym.  909. 

*  McCranie  v.  Wood,  24  La.  Ann.  40n  :  Bland  v.  Adams  Express  Co., 
1  Duv.  (Ky.)  232  ;  Philadelphia  R.  r.  Harper,  29  Md.  330  ;  Holladay 
V.  Kennard,  12  Wall.  (U.  S.)  254;  Nashville  R.  v.  Estes,  10  Lea,  749. 

6  Holladay  v.  Kennard,  12  Wall.  (U.  S.)254. 

^  Barclay  ?'.  Cuculla  y  Gana,  3  Dong.  389.  "  For  though  the  force  be 
never  so  great,''  says  Lord  Holt,  "  as  if  an  irresistible  multitude  should 
rob  him,  nevertheless  he  is  chargeable."  Coggs  v.  Bernard,  2  Ld.  Raym. 
91)9.  918.     See  also  Missouri  R.  v.  Nevill,  60  Ark.  375 ;  §  41 


186  THE  LAW  OF  BAILMENTS 

is  a  great  hardship  imposed  by  our  law  upon  the  carrier,  and 
second  only  to  that  of  his  liability  for  a  loss  by  accidental  fire. 
And  it  is  well  understood  that  the  common  carrier  can  claim 
no  legal  immunity  from  tlie  depredation  of  thieves  and  rob- 
bers, but  is  held  as  an  insurer  against  all  losses  of  this  char- 
acter, even  though  he  were  personally  free  from  the  reproach 
of  complicity  or  cowardice.^ 

336.  Acts  of  pirates  fall  within  our  present  exception  appar- 
ently ;  inasmuch  as  pirates  are  now  pursued  by  civilized 
nations,  and  scourged  as  the  common  enemies  of  mankind.^ 
So,  with  equal  or  better  reason,  should  acts  of  privateers  fur- 
nish the  carrier  with  a  cause  of  exemption  ;  for  if  privateers 
differ  at  all  from  pirates,  it  is  only  because  the  broad  seal  of 
a  belligerent  power  sanctions  their  depredations,  so  as  to  exalt 
those  by  whom  the  carrier  is  thus  overpowered  all  the  more 
nearly  to  the  plane  of  "  public  enemies."  ^ 

337.  Loss  or  injury  by  act  or  fault  of  the  consignor  of  the 
goods,  or  the  customer  himself,  makes  a  third  cause  of  exemp- 
tion. This  cause  appears  not  to  have  been  specially  stated  in 
the  earlier  books ;  but  the  influence  of  the  consignor's  or  cus- 
tomer's conduct  in  diminishing  or  excluding  his  right  of 
recovery  under  the  contract,  has  always  been  conceded ;  and 
in  some  of  the  later  decisions,  this  class  of  exceptions  will  be 
found  expressly  recognized.  Whenever  the  consignor  or  cus- 
tomer has,  under  contract  of  carriage,  by  himself  or  his  servants, 
wilfully,  fraudulently,  or  in  negligent  disregard  of  his  duty  as 
bailor,  occasioned  the  loss  complained  of,  the  carrier  may  set 
this  up  for  his  own  especial  justification.* 

338.  Thus,  insecure  or  imperfect  packing  which  causes  dam- 
age to  tlie  goods  imputes  fault  to  the  customer  rather  than  to 
the    carrier.^     Or,  if  the   goods    are    improperly  marked    or 

1  See  nrUe,  328  ;  §  419. 

2  §  420;    Th(!  Magellan  Pirates,  25  E.  L.  &  Eq.  595. 

3  1  Kent  Com.  9G. 

*  ^  337;  Choate  v.  Crowninshield,  3  Cliff.  (U.  S. )  184. 

5  §  422  ;  Daldwin  v.  London  R.,  9  Q.  B.  D.  582  (damp  rags  badly 
packed);  22  Greg.  14;  Klauber  i\  American  Expre.ss  Co.,  21  ^Vis.  21; 
9  C.  &  r.  380.    And  see  atUe,  314,  as  to  consignor's  duty  in  packing,  etc. 


BAILMENT   KESPONSIBILITY   OF   COMMON   CARRIER       187 

directed,  the  carrier  cannot  be  blamed  for  their  being  missent 
accordingly,  in  fair  pursuance  of  direction.^  And  as  to  pack- 
ing, loading,  and  securing  the  property  on  the  vehicle  gen- 
erally, it  may  often  be  material  to  inquire  how  far  the 
performance,  instead  of  being  intrusted  to  the  carrier  and  his 
own  servants,  or  where  at  all  events  the  carrier  had  the  respon- 
sible supervision,  was  kept  under  the  exclusive  management 
and  control  of  the  consignor  or  customer  himself ;  since  pre- 
sumptions of  duty  may  be  controlled  by  the  actual  circum- 
stances of  a  case.2 

339.  Bad  faith,  too,  •wherever  exhibited,  dulls  the  sympathy 
of  the  law  towards  the  victim  who  has  practised  it  to  his  own 
injury.  And  since  a  carrier  may  not  break  packages,  and 
learn  for  himself  what  they  contain  or  how  much  they  are 
worth,  nor  ply  the  consignor  with  searching  interrogatories, 
the  latter  party  should  take  heed  that  appearances  and  his  own 
voluntary  statements  be  not  calculated  to  deceive  and  impose 
upon  the  carrier.^  And,  apart  from  open  statements,  should 
the  consignor  do  up  his  package  artfull}-,  so  as  to  make  it 
appear  less  valuable  or  less  liable  to  receive  or  inflict  injury 
than  is  really  the  fact;  or,  by  false  marks  or  other  trick, 
impose  upon  his  bailee ;  all  e\i\  consequences  which  such  mis- 
conduct may  have  invited  must  be  borne  by  himself.  P'or  a 
carrier  is  to  be  charged  with  no  responsibility  beyond  what  the 
thing  appears,  on  its  face  and  the  proof  at  command,  to  deserve; 

^  Congar  v.  Chicago  R.,  24  Wis.  157;  Stimson  r.  Jackson,  58  X.  H. 
138. 

2  §  422.  While  the  duty  of  loading  on  board  and  stowing  belongs 
properly  to  the  carrier,  yet  in  exceptional  cases  the  shipper  sometimes 
attends  to  this  for  special  reasons.  Ross  v.  Troy  &  Boston  R.,  -49  Vt. 
364;  56  Ark.  424.  Where,  contrary  to  usage,  the  customer  selects  his  own 
vehicle  or  part  of  vehicle,  he  maybe  held  to  have  assumed  certain  obvious 
risks,  riairis  v.  Northern  R.,  20  N.  Y.  232.  Cf.  Railroad  Co.  v.  Pratt,  22 
Wall.  (U.  S.  )  123;  102  Mass.  557. 

'^  §  423;  oiite,  314-316.  As  to  the  carrier's  right  to  ask  the  value  of  a 
closed  package,  etc.,  see  Walker  v.  Jackson,  10  M.  &  W.  168;  14  C.  B. 
2.")5;  n  Wend.(N.  Y.)  115;  8  Pick  (Mass.)  182;  Merchants'  Despatch  Co, 
V.  Bolles,  SO  111.  472;  Little  v.  Bcston  &  Maine  R.,  66  Me.  239;  Nitro- 
Glycerine  Case,  15  Wall.  (U.  S.)  521 ;  42  111.  458. 


188  THE   LAW   OF   BAILMENTS 

and  the  sender  whose  conduct  induces  him  to  relax  his  guard, 
or  goes  to  deprive  him  of  his  just  compensation,  puts  himself 
without  the  pale  of  justice.^ 

340.  By  his  negligent  omission  of  duty,  a})art  from  any  wilful 
misconduct,  the  consignor  may  exonerate  the  carrier.  Thus, 
where  he  fails  to  warn  the  carrier  of  the  dangerous,  fragile,  or 
perishable  nature  of  articles  he  delivers,  whose  peculiar  charac- 
ter does  not  appear  on  inspection,  he  puts  in  jeopardy  his  right 
to  recover  for  a  loss  which  his  ordinary  prudence  in  this  respect 
might  have  prevented.^  Where,  too,  things  break,  spoil,  or 
run  out,  because  of  inherent  defects  or  properties  against 
whose  mischievous  operation  unusual  pains  should  be  taken, 
the  carrier  may  set  up,  in  extension  of  the  defence  of  natural 
wear  and  deterioration  usually  allowed  him,  that  the  damage 
was  occasioned  by  the  shipper  in  delivering  the  property 
without  affording  him  the  means  of  knowing  its  real  nature 
or  condition.  For,  if  the  carrier  takes  such  reasonable  pains 
against  wasting,  breaking,  or  spoiling,  as  the  thing,  when  ac- 
cepted, appears  to  require,  in  accordance  with  its  evident 
nature  and  condition,  this  is  pains  enough ;  though  as  to 
matters  open,  and  not  latent,  he  is  bound  to  be  alert  and 
discriminating.^ 

341.  A  mixed  custody  in  the  transit  occasions  a  mixed  respon- 
sibility. In  all  such  cases  liability  for  loss  may  actually  rest 
upon  carrier  or  customer,  according  to  the  circumstances.'* 

1  §  423;  4  Burr.  2298;  2  Bosw.  (N.  Y.)  589;  Southern  Express  Co.  v. 
Everett,  46  Ga.  303;  10  Otto  (U.  S.),  24  ;  Hutchinson  v.  Guion,  5  C.  B. 
N.  s.  149;  Coxe  v.  Heisley,  19  Penn.  St.  243;  Chicago  R.  v.  Thompson, 
19  lU.  578 ;  Hayes  v.  Wells,  23  Cal.  185. 

2  §  424 ;  6  E.  &  B.  470 ;  Farrant  v.  Barnes,  11  C  B.  n.  s.  553  ;  Nitro- 
Glycerine  Case,  15  Wall.  (U.  S.)  524;  Boston  &  Albany  R.  v  Shanly,  107 
Mass.  568.     See  also  2  Sprague  (U.  S.),  35. 

Such  default  on  the  consignor's  part,  especially  in  highly  dangerous 
articles,  will  render  him  personally  liable  for  damages  thereby  occasioned 
to  the  carrier  or  others  in  person  or  property,     lb. 

8  §  424.     See  ante,  314,  333. 

*  §  425.  Such  is  the  case,  e.  g.,  with  the  driver  of  a  loaded  team  upon 
a  ferry  boat,  with  the  drover  who  accompanies  a  cattle  train,  or  with  a 
passenger  who  takes  hand-baggage. 


BAILMENT   RESPONSIBILITY   OF   COMMON   CARRIER       189 

342.  But  the  carrier's  own  vigilance  should  not  relax,  ill  order 
that  the  consignor's  or  customer's  act  or  conduct  may  avail 
the  carrier  to  excuse  a  loss.^  Courts  and  juries  hesitate  to 
transfer  the  risks  of  transportation  from  the  carrier  to  his 
customer,  on  any  suggestion  that  the  hitter  has  concealed  or 
misrepresented  to  the  former's  prejudice,  where  such  conceal- 
ment or  misrepresentation  was  through  inadvertence,  or  be- 
cause of  a  silence  neither  unnatural  nor  inexcusable,  and 
where,  too,  it  does  not  reach  fundamentals ;  but  their  pre- 
sumption is  rather  against  the  party  pursuing  his  public 
vocation,  who  is  not  intended  to  enter  at  pleasure  into 
contracts  as  one  on  equal  terms,  and  who,  under  no  circum- 
stances, should  be  allowed,  on  trivial  grounds,  to  shift  to  his 
patron's  shoulders  the  extraordinary  risks  which  the  law 
compels  him  to  bear  by  himself.^ 

343.  Loss  or  injury  by  the  public  authority  affords  our  fourth 
and  final  exception.  Since  loss  by  "public  enemies"  affords 
the  instance  of  carriage  exemption  because  of  human  inter- 
vention, as  contrasted  with  that  occasioned  by  Divine  or 
natural  intervention,  such  as  we  denominate  "act  of  God," 
according  to  the  old  statement  of  the  rule  (to  which  we  have 
just  added  the  act  of  the  customer  himself),  we  may  here 
inquire  what  would  be  the  effect  of  a  seizure  of  the  goods  and 
dispossession  by  the  domestic  public  authority,  or  the  strong 
arm  of  the  law ;  a  further  exception,  by  human  intervention, 
if  an  exception  at  all.^  Interference  with  the  transit  by 
process  of  the  courts  affords  here  our  clearest  illustration. 
In  case  of  a  seizure  or  legal  compulsion  because  of  the  car- 
rier's own  fault,  or  under  some   false  or  pretended   process 

1  §§  426,427;  5  Blatchf.  (U.  S.)  2(36  ;  26  Ohio  St.  595;  2  Sumn.  (U.  S.) 
567  ;  Lebeau  (,-.  Steam  Xav.  Co.,  L.  R.  8  C.  P.  88. 

While  delay  might  be  excused  from  a  misdirection,  loss  of  the  goods 
would  not;  nor  can  loss  or  injury  be  excused,  to  which  the  consignor's 
remissness  did  not  contribute.  17  La.  An.  29;  Union  Express  Co.  i'.  Gra- 
ham, 26  Ohio  St.  595;  Shriver  v.  Sioux  City  R.,  24  Minn.  506;  102 
Mass.  201. 

2  lb.     Cf.  12  How.  (U.  S.)  272;  28  Barb.  (N.  Y.)  323. 

3  §  428. 


190  THE   LAW   OF   BAILMENTS 

the  carrier  can  claim  no  exemption  from  full  responsibility  to 
the  party  who  employed  him.^  But  otherwise,  wherever  he 
encounters  without  fault  the  service  of  genuine  legal  process 
against  the  goods,  he  is  properly  absolved  from  further  lia- 
bilit}^  if  he  notifies  his  customer  promptly  and  leaves  the 
latter  to  defend,  otherwise  using  due  diligence  and  care.^ 
Our  conclusion,  from  these  cases  and  the  light  of  reason,  is, 
that  a  fourth  legal  exception  should  be  stated  to  the  carrier's 
common-law  liability  :  namely,  where  loss  or  injury  is  directly 
caused  by  the  public  authority.  And  hence,  should  the  car- 
rier's own  government,  by  a  direct  act  of  sovereignty,  such 
as  embargo,  seizure,  or  impressment,  hinder  or  interrupt  his 
transit  or  intercept  the  goods,  this  overpowering  act  would 
serve  him  as  an  excuse,  whether  the  government  acted  by 
its  civil  or  military  officers,  through  the  courts  or  the  execu- 
tive department ;  supposing  the  carrier  himself  to  have  acted 
in  good  faith  and  with  ordinary  prudence  and  discretion 
under  all  the  circumstances.^ 


1  104  Mass.  159;  Kiff  v.  Old  Colony  R.,  117  Mass.  591;  Faust  v. 
South  Carolina  R.,  8  S.  C.  118;  Bennett  v.  Express  Co.,  83  Me.  236;  1 
Camp.  451. 

^  Stiles  V.  Davis,  1  Black.  (U.  S.)  101;  Ohio  R.  v.  Yohe,  51  Ind.  181 
126    Ind.  322;    Hett   v.  Boston  &   Maine  R.,  69  N.   H.   139;    Bliven  v. 
Hudson  River  R.,  36  N.  Y.  403;  Spencer  v.  Chodwick,  10  Q.  B.  516;  18 
Oreg.  419;  Furman  v.  Chicago  R.,  81  Iowa,  540.     But  the  process  should 
be  valid  and  tlie  customer  duly  notified.     86  Minn.  33. 

A  public  seizure  under  police  regulations  of  a  State  excuses  the  car. 
rier ;  but  he  should  not  connive  at  or  procure  it,  nor  withhold  notice  from 
his  customer.     Railroad  Co.  v.  O'Donnell,  49  Ohio  St.  489. 

That  the  rightful  owner  obtained  possession  by  or  without  legal  pro- 
cess would  of  course  justify  an  honorable  carrier. 

3  That  under  such  constraint  a  carrier  need  not  accept  private  business, 
see  Phelps  v.  Illinois  Central  R.,  94  111.  548.  And  see  4  Cliff.  (U.  S.)  228, 
where  the  carrier  was  exonerated  from  the  loss  of  liquors  in  his  custody, 
which  were  seized  and  destroyed  under  the  Maine  liquor  act  of  1871 ;  hav- 
ing given  due  notice  of  the  seizure  to  the  owner.  So.  too,  the  carrier's 
exemption  during  our  civil  war,  which  one  State  court  excuses  as  the  act 
of  a  "  public  enemy,"  appears  in  another  regarded  as  an  act  of  public 
(or  "Confederate")  authority.  Nashville  R.  v.  Estes,  10  Lea  (U.  S.), 
749. 


BAILMENT   RESPONSIBILITY   OF   COMMON   CARRIER       191 

344.  The  carrier  is  liable  for  his  servants  as  for  himself, 
whether  their  misconduct  be  wilful  or  simply  careless.  All 
such  liability  for  neglect  or  default  of  servants  transcends  the 
rules  of  agency  so  as  to  render  the  carrier  liable  absolutely  for 
the  felony  or  wilful  wrong  of  his  servants. ^  The  fraud  and 
misconduct  of  the  carrier  or  his  servants,  which  occasions  a 
loss,  forbids,  therefore,  his  exemption  on  any  plea,  whether  it 
be  "act  of  God  "  or  other  pretended  excuse  ;  as  if  his  ship  be 
wilfully  scuttled,  or  run  aground,  or  deserted,  or  set  on  fire, 
whereby  the  cargo  sustains  injury.^ 

345.  Proximate  and  remote  cause  are  always  regarded  in 
applying  any  and  all  of  the  four  excuses  we  have  enumerated. 
We  must  consider  whether,  in  a  case  of  loss  or  injury,  the 
direct  and  proximate  cause  of  that  loss  or  injury  was  the  car- 
rier's own  remissness  of  duty  rather  than  the  legal  excuse 
which  he  sets  up.  Thus,  to  take  the  most  familiar  exception, 
"  act  of  God."  Manifestly  all  issues  of  the  present  character, 
discussed  under  this  head,  pivot  upon  proximate  or  immediate 
cause  of  the  disaster  as  distinguished  from  what  is  remote. 
Hence,  the  carrier's  own  conduct,  as  inducing  or  enhancing 
the  loss,  or  otherwise,  becomes  an  affair  of  great  moment.  If 
a  ferryman,  for  instance,  ventures  out  in  a  blinding  storm,  or 
the  master  of  a  ship  crowds  sail  to  meet  a  tempest,  or  an  ex- 
press or  railway  carrier  undertakes  to  transport  animals  not- 
withstanding a  flood,  the  disaster  invited  by  thus  daring  the 
elements  should  not  be  ascribed  to  the  elements  themselves, 

1  §  429  ;  1  Bosw.  (X.  Y.)  77;  Winter  v.  Pacific  R.,  41  Mo  503  ;  Biilkley 
V.  Cotton  Co.,  24  How.  (U.  S.)  386  (tovvboat  as  agent);  11  Wend.  (N.  Y.) 
571;  ]Mayall  r.  Boston  &  ]\Iaine  R.,  19  N.  H.  122  (partner  as  servant). 
As  to  those  loading,  see  84  Tex.  348;  ante,  311.  The  transporting  com- 
pany employed  by  an  express  is  the  express  company's  servant,  pi-o  hac 
vice.  Bank  of  Kentucky  v.  Adams  Express  Co.,  93  U.  S.  174.  And 
see  Boscowitz  v.  Adams  Express  Co.,  93  111  523.  See  also  connecting 
carriers,  c.  9,  post.  Strikers  who  sever  their  relation  with  a  company 
cease  to  be  servants  in  a  binding  sense.  Geismer  v.  Lake  Shore  R., 
102  N.  Y.  563;  65  Ind.  188.  Cf.  Central  R.  i;.  Georgia  Exchange,  91 
Ga.  389. 

-  Waters  v.  Merchants'  Ins.  Co.,  11  Pet.  (U.  S.)  213;  Stephens  v.  Lon- 
don R.,  18  Q.  B.  D.  121. 


192  THE   LAW   OF   BAILMENTS 

but  to  the  carrier's  f oolhardiness.  ^  Wherever,  in  short,  by 
overloading,  deviating,  furnishing  unsuitable  vehicles,  ser- 
vants, or  equipments,  journeying  at  improper  seasons  or  in 
unsafe  places,  carelessly  directing  his  vehicle,  or  imprudently 
exposing  the  property  contained  therein,  the  carrier  substan- 
tially occasions  the  loss  or  injury  under  discussion,  the  proxi- 
mate cause  of  loss,  no  matter  what  tempest  or  other  natuial 
calamity  may  come  upon  him,  is  of  man's  intervention,  and  that 
man  the  carrier  himself.  The  law  refuses  to  accept  his  excuse 
in  such  cases,  because  the  essential  cause  of  loss  was  his 
remissness  in  duty.^ 

346.  And,  as  with  exposure  to  the  unforeseen  action  of  natural 
elements,  so  in  general  as  to  permitting  their  normal  operation 
and  the  wear  and  tear  of  the  transit,  no  carrier  can  escape 
liability  for  loss  and  damage,  who,  from  a  failure  to  exercise 
such  care  and  skill  as  is  usually  bestowed  by  prudent  persons 
of  his  calling,  becomes  in  any  instance  the  efficient  cause  or 
occasion  thereof.^  Likewise  is  the  carrier  denied  the  privilege 
of  alleging  natural  spoliation  or  "  act  of  God  "  in  his  defence, 
where  he  placed  things  in  close  contact,  which  prudent  car- 
riers know  should  be  kept  far  apart,  and  so  caused  mischief; 
where,  for  instance,  what  lie  perceives  to  be  a  bale  of  silk  is 

1  §  431 ;  2  Nott  &  McCord  (S.  C),  19  ;  Adams  Express  Co.  v.  Jackson, 
92  Teim.  326. 

2  §  431 ;  The  Schooner  Sarah,  2  Sprague  (U.  S.),  31 ;  West  v.  Steam- 
boat Berlin,  3  Iowa,  532.  A  needless  deviation  renders  the  carrier  liable. 
Phillips  V.  Brigham,  26  Ga.  617:  7  Blackf.  (Ind.)  497;  4  B.  &  S.  66 ;  4 
Harr.  &J.  291.  And  see  Tierney  r.  N.  Y.  Central  R.,  76  N.  Y.  305; 
Hewett  I'.  Chicago  R.,  63  Iowa,  611  (freezing  or  melting);  79  Iowa,  518 
(neglect  of  cold  storage  for  long  journey)  ;  21  Wis.  21  (wetting);  I'liilleo 
r  SnnfnrH  17  Tpx  9,^7  ■  H  Pick.  (]\Iass.)  41  (neglect  of  directions); 
Packard  v.  'I'aylor,  35  Ark.  402  (unseaworthy  vessel)  :  Kinnick  v.  Chi- 
cago R.,  69  Iowa,  665  (failure  to  prudently  preserve  and  diminish  loss, 
where  calamity  overtakes). 

*  Thus,  for  bad  stowage  which  directly  causes  loss  or  injury,  the 
carrier  is  liable.  The  Star  of  Hope,  17  Wail.  (U.  S.)  651  ;  16  Fed.  (U.  S.) 
148;  29  Fed.  373.  And  see  §§  432,  433.  So  for  causing  a  leakage. 
Leech  v.  Baldwin,  5  Watts  (Penn.),  446.  Or  for  badly  ventilating  or 
regulating  light.  3  Sawyer  (U.  S.),  176;  8  Ben.  (U.  S.)  491.  Or  for  care- 
less handling.     §  432. 


BAILMENT  RESPONSIBILITY  OF  COMMON  CARRIER       193 

set  against  sulphuric  acid  or  molasses,  or  breadstuffs  are  de- 
liberately packed  among  volatile  oils  of  penetrating  flavor.^ 
Stowage  should  be  suitable  according  to  all  the  circum- 
stances :  such  as  the  character  and  bulk  of  the  particular 
goods,  their  liability  to  spoil,  and  whether  other  goods  or  the 
proper  appliances  of  the  vehicle  will  be  incommoded.^  No 
jettison,  of  course,  is  excusable  which  is  immediately  traceable 
to  the  fault  of  the  carrier.^ 

347.  To  loss  or  injury  from  "  public  enemies  "  the  rule  of 
proximate  and  remote  cause  is  further  applied.  Here,  as 
under  our  former  exception,  the  overpowering  calamity  must 
have  been  the  proximate  and  immediate  cause  of  the  loss  ;  so 
that  the  carrier's  want  of  ordinary  care  and  diligence,  as  well 
as  his  fraud  and  wilful  misconduct,  (or  the  remissness  of  his 
servants)  entering  as  a  contributing  element  into  the  disaster, 
would  commonly  leave  him  responsible  as  before.^  For  the 
experience  of  many  confirms  the  remark  that  the  seizure, 
destruction,  or  confiscation  of  personal  property  on  transit, 
even  by  public  enemies,  is  by  no  means  so  irresistible  or  be- 
yond the  power  of  a  carrier's  prevention,  that  common  pru- 
dence and  energy  may  not,  in  many  instances,  preserve  them : 
while,  on  the  other  hand,  opportunity  and  the  prospect  of 
private  gain  may  tempt  such  a  party  to  collude  with  his 
country's  foes,  or  run  dangerous  risks,  at  the  sacrifice  of 
those  who  were  compelled  to  trust  him.  That  pi'oximate  and 
remote  cause  must  be  considered  where  "  act  of  the  cus- 
tomer "  is  set  up  in  defence  clearly  enough  appears  from  our 
former  statements  on  that  point.     This  default  or  misconduct 


1  Alston  V.  Herring,  11  Ex.  822;  6  E.  cSc  B.  478  n. ;  1  Sprague  (U.  S.), 
530. 

■•^  Stowage  under  deck  is  presumed  under  a  vessel's  bill  of  lading. 
The  Delaware,  14  Wall.  (U.  S.)  579  ;  3  Conn.  9.  But  usage,  as  implying 
a  short  distance,  etc.,  may  modify.  See  8  Ben.  (U.  S.)  210;  §  433;  17 
How.  (U.  S.)  114;  11  111.  579  ;  13  Me.  229. 

«  The  Portsmouth,  9  AVall.  (U.  S.)  682.  And  see  94  N.  C.  451 ;  Mackill  v. 
Wright,  14  App.  Cas.  106  (stowage  of  coal  among  machinery  not  proper). 

*  §  434;  Holladay  r.  Kennard,  12  Wall.  (U.  S.)  254  ;  Porcher  v.  Xorth- 
eastern  K.,  14  Rich.'(S.  C.)  181. 

13 


194  THE  LAW  OF   BAILMENTS 

of  the  carrier's  consignor  or  consignee  —  in  other  words,  of  his 
customer  —  must  have  been  the  primary  and  essential  cause 
of  the  mischief  in  order  to  avail  the  carrier.^  The  same  holds 
true  of  loss  or  injury  "by  the  public  authority;"  an  excuse 
which  no  carrier  is  competent  to  set  up  where  he  yields  heed- 
lessly to  legal  process  such  as  any  claimant  might  set  in 
motion  under  the  color  of  a  right,  without  either  notifying 
his  customer  to  defend  the  suit  or  testing  the  justice  of  the 
claim  for  himself.^  Proximate  and  remote  cause  is  also  re- 
garded in  deciding  as  between  an  excusable  and  non-excusable 
calamity ;  as,  for  instance,  where  a  fire  (which  is  not  legally 
excusable)  occurs,  which,  it  is  claimed,  would  not  have  de- 
stroyed the  goods  had  not  a  tempest  driven  the  flames  sud- 
denly forward.'^ 

348.  In  general,  for  the  ordinary  and  proximate  consequences 
of  their  own  culpable  carelessness,  common  carriers  are  an- 
swerable, though  not  for  such  consequences  as  are  remote  and 
exceptional ;  and  this  liability  includes  all  those  consequences 
which  may  have  arisen  from  the  want  of  ordinary  prevision 
to  anticipate  or  ordinary  care  to  reduce  the  damage  by  what 
occurs,  so  far  as,  under  all  the  circumstances,  a  due  exercise 
of  diligence  would  have  prevented  loss.^  And  in  this  connec- 
tion we  may  revert  to  the  measure  of  a  carrier's  duty  already 
set  forth.  For,  by  far  tlie  better  opinion,  it  is  simply  the 
measure  of  ordinary  care  and  good  faith  which  the  law  properly 
exacts  of  liim,  wherever  questions  of  contributory  negligence 
arise.  Some  courts  seem  to  have  wrongly  supposed  that  Avith 
his  legal  risk  as  insurer,  went  a  requirement  of  extraordinary 
care  on  his  part  where  causes  primary  and  secondary,  proximate 
and  remote,  had  to  be  considered.^ 

1  §  434  ;  ante,  311,  342. 

2  Ante,  343. 

*  Pennsylvania  R.  v.  Fries,  87  Penn.  St.  234. 

We  shall  see  the  principle  of  proximate  and  remote  cause  extended  to 
such  other  exceptions  from  liability  as  special  contract  introduces  into 
the  carriage  undertaking.     See  c.  5,  post. 

4  See  Scott  v.  Allegheny  R.,  172  Penn.  St.  646. 

5  §§  435-437.  The  conflict,  in  p]ngland,  arose  in  the  case  of  an  animal 
whose  d^■ath  was  evidently  caused  by  fright  and  struggling  on  a  rough 


BAILMENT  RESPONSIBILITY  OF   COMMON  CARRIER       195 

349.  Where  the  disaster  -vras  inevitable  notwrithstanding  the 
carrier's  default,  the  question  arises  whether  such  an  excuse 
is  ever  available  to  him.  Thus,  supposing  the  master  of  a 
ship  to  have  deviated  so  slightly,  or  for  so  short  a  period,  that 
the  same  tempest  which  actually  wrecked  his  vessel  must  in- 

voyage,  where  the  creature  had  been  reasonably  well  secured  and  re- 
garded while  the  general  safety  of  the  vessel  required  special  attention 
during  the  bad  weather.  On  the  principle  that  with  the  utmost  fore- 
sight and  skill  the  animal's  life  might  have  been  preserved,  the  lower 
court  held  the  sea-cariier  liable.  But  on  appeal  the  decision  was  re- 
versed ;  and  this  exposition  was  condemned  as  demanding  too  much  of 
the  carrier,  as  against  the  direct  operation  of  "  act  of  God."  In  other 
words,  the  exertion  of  reasonable  or  ordinary  skill  and  prudence  to  avert 
or  overcome  the  natural  disaster  is  all  that  the  law  holds  requisite. 
Nugent  V.  Smith,  1  C.  P.  D.  19,  3-1;  s,  c.  on  appeal,  1  C.  P.  D.  423,  435. 

"It  is  somewhat  remarkable,"  observed  Cockburn,  C.  J.,  on  appeal, 
"that,  previously  to  the  present  case,  no  judicial  exposition  has  occurred 
of  the  meaning  of  the  term,  'act  of  God,'  as  regards  the  degree  of  care  to 
be  applied  by  the  carrier,  in  order  to  entitle  himself  to  the  benefit  of  its 
protection."     1  C.  P.  D.  423,  435. 

In  America,  the  same  general  inquiry  has  arisen  with  reference  to  land 
carriers,  and  with  the  same  preponderance  of  authoi'ity.  Thus,  in  New 
York  State,  a  strict  rule  was  applied  for  contributory  negligence,  where 
"  act  of  God  "  had  directly  occasioned  the  loss.  Goods  were  left  in  the 
freight  depot  at  the  Hudson  River,  and  a  sudden  flood  arose  so  as  to  wet 
and  injure  them.  The  carrier,  having  delayed  (though  not  unreason- 
ably) to  forward  the  goods  before  the  flood  came,  was  here  held  liable. 
Michaels  v.  N.  Y.  Central  R.,  30  N.  Y.  564;  30  N.  Y.  630.  But,  since 
reasonable  delays  in  transportation  are  always  excused,  and  merely  ordi- 
nary care  would  not  have  averted  such  a  disaster,  the  railway  carrier  was 
in  Massachusetts  relieved,  upon  the  same  showing  of  facts.  Denny 
V.  N.  Y.  Central  R.,  13  Gray  (Mass.),  4sl.  And  in  a  Pennsylvania  case 
the  standard  of  simply  ordinary  care  was  applied  where  "  act  of  God" 
was  shown.  Morrison  v.  Davis,  20  Penn.  St.  171.  The  rule  of  Penn- 
sylvania and  ^lassachusetts,  rather  than  that  of  New  York,  received, 
several  years  later,  the  approval  of  the  Supreme  Court  of  the  United 
States  ;  a  sanction  which,  under  all  the  circumstances,  ought  to  preponder- 
ate in  American  tribunals.  Railroad  Co.  r.  Reeve,  10  Wall.  (U.  S.)  176. 
And  see,  as  confirming  such  a  conclusion,  the  later  cases  :  115  Mass.  304  ; 
68  Penn.  St.  302;  Vail  v.  Pacific  R.,  63  Mo.  230;  12  Wall.  (U.  S.)  254; 
9  lleisk.  (Tenn.)  58;  15  Col.  333;  Black  v.  Chicago  R.,  30  Neb.  197; 
Smith  V.  Western  R.,  91  Ala  455;  Baltimore  R.  v.  Keedy,  75  Md.  320; 
Johnson  v.  Tennessee  R.,  90  Ga.  810  ;  101  Cal.  187. 


196  THE   LAW   OF   BAILMENTS 

fallibly  have  overtaken  it,  even  if  he  had  steadily  pursued  the 
true  course,  will  he  be  held  liable  for  the  loss  of  the  goods  on 
board?  Or  must  he  strictly  respond,  supposing  goods  were 
left  on  deck,  in  violation  of  his  duty,  and  yet  the  storm  that 
washed  them  away  destroyed  likewise  all  that  were  stowed  in 
the  hold?  The  Roman  law  would,  under  such  circumstances, 
have  exonerated  the  carrier.  Pothier  is  an  eminent  authority 
in  favor  of  such  a  doctrine.^  Our  common  law  appears  to 
incline  in  the  same  direction ;  permitting  tlie  carrier  to  show 
in  defence,  that  although  he  may  have  been  in  default,  yet 
that  the  loss  was  independent  of  such  default,  and  must  have 
happened  regardless  of  it.^  As  for  delay  or  deviation,  whereby 
goods  are  brought  into  immediate  contact  with  the  excepted 
peril,  we  may  well  conceive  of  circumstances  rendering  such 
delay  or  deviation  not  only  reasonable,  but  highly  expedient.^ 
All  this  goes,  however,  towards  justif3'ing,  not  so  much  the 
admission  of  contributory  wrong  or  default  on  the  carrier's 
part,  despite  which  the  excepted  calamity,  it  is  shown,  must 
have  happened,  as  to  strike  away  the  link  of  contribution 
altogether,  and  leave  the  excepted  cause  in  sole  operation  as 
the  motive  of  the  disaster.  Or,  it  may  be  said,  the  bailment 
of  itself  mutually  implies  that  in  a  peculiar  and  pressing 
emergency,  the  carrier  may  delay  or  even  deviate,  observing 
the  bounds  of  prudence  and  good  faith.* 

350.  The  carrier's  legal  excuse  should  be  set  up  by  him  in 
defence  when  charged  with  a  loss  or  injury.  For,  to  dis- 
courage litigation,  the  common  law  strongly  presumes  against 
every  public  transporter  to  whom,  in  the  regular  course  of 
business,  property  has  been  consigned  for  carriage,  which 
fails  in  due  time  to  reach  its  destination  reasonably  safe  and 
sound.     Proof,  to  this  extent,  of  an  owner's  or  customer's 

1  §  438;   story  Bailm.  §  413  a-d. 

2  Tiiidal,  C.  J.,  in  Davis  v.  Garrett,  6  Bing.  716  (unseaworthy  vessel 
caj)tur(,'d  by  public  enemy).  And  see,  as  to  stowage  on  deck  not  produc- 
ing the  loss.  Ware  (U.  S.),  188;  Gardner  v.  Smallwood,  2  Ilayw.  (S.  C.)  34!h 

8  The  Schooner  Sarah,  2  Sprague  (U.  S.),  31. 

*  For  this  suggestion  as  ai)plied  to  bailments  for  hire,  see  ititpra,  115, 
IIG.     And  see  13  Mo.  352;  28  Mo.  323;  2  Watts  (Pmn.),  114;  2G  Ga.  617. 


BAILMENT  RESPONSIBILITY   OF   COMMON   CARRIER      197 

loss  or  injury  establishes,  prima  facie,  the  liability  of  the 
common  carrier  to  make  that  loss  or  injury  good,  and  puts 
upon  him  the  onus  of  controverting  such  proof,  or  of  reliev- 
ing himself  by  showing  that  the  occasion  of  loss  or  injur}^ 
was  such  as  ought,  by  law,  to  excuse  him.^  But  wliile  the 
consignor  or  owner  of  goods  is  not  commonly  bound  to  prove 
how  or  where  the  mischief  actually  happened,  —  matters 
whose  knowledge,  except  in  special  cases,  must  be  witliin  tlie 
carrier's  peculiar  province,  if  proof  be  attainable  at  all,  —  it 
is  yet  incumbent  upon  such  party,  as  the  foundation  of  his 
rightful  claim,  to  show  a  complete  delivery  of  the  property 
to  the  party  exercising  the  public  vocation,  and  further,  that 
the  goods  in  question  were  delivered  over,  at  the  end  of  the 
transit,  in  the  damaged  or  wasted  condition  complained  of,  or 
not  delivered  over  at  all.  His  showing  must  be  such  as 
leaves  it  improbable  that  the  loss  or  injury  could  have  oc- 
curred from  any  other  cause  than  such  as  leaves  a  carrier 
liable .2  And  whenever  the  carrier  has,  in  response,  brought 
the  loss  or  injury  fairly  within  one  of  the  foregoing  legal  ex- 
ceptions, act  of  God,  act  of  public  enemy,  or  act  of  the 
consignor  or  customer,  or  act  of  public  authority,  by  ample 
evidence  to  that  effect,  such  as  imputes  no  blame  to  himself, 
he  is  not  bound  to  show  further,  affirmatively,  that  there  was, 
in  fact,  no  contributory  negligence  or  misconduct  on  his  part, 
but  may  here  rest  his  case,  and  leave  the  other  to  show  such 
negligence  or  misconduct,  as  proximate  cause  of  the  mischief, 
by  way  of  rebutting  testimony  if  he  can.^  In  general,  and 
as  the   final  i-esult  of  all  the  evidence  adduced,  the  burden 

1  §  439;  Nugent  v.  Smith,  1  C  P.  D.  19,  42:5;  1  T.  R.  27;  2  Ohio  St. 
131  ;  Michaels  v.  New  York  Central  R.,  30  N.  Y.  504;  Montgomery  R. 
V.  Moore,  51  Ala.  394  ;  Hall  v.  Cheney,  36  N.  H.  26 ;  Alden  v.  Pearson, 
3  Gray  (Mass  ),  342  ;  Van  Winkle  v.  South  Carolina  R.,  38  Ga.  32;  Little 
V.  Boston  R.,  66  :\Ie.  239  ;  89  Mo.  340. 

2  Midland  R.  v.  Bromley,  17  C.  B.  376;  2  Blatchf.  (U.  S.)  64;  Ring- 
gold V.  Haven,  1  Cal.  108. 

3  Nugent  V.  Smith,  1  C.  P.  D.  423;  Vail  v.  Pacific  R.,  63  Mo.  230; 
3  Woods  (U.  S.),  380;  Railroad  Co.  v.  Reeve,  10  Wall.  (U.  S.)  176. 

As  to  the  burden  of  proof  under  special  contract  modifications  of  lia- 
bility, see  next  chapter. 


198  THE   LAW   OF  BAILMENTS 

of   a  prima  facie   case   against  the    carrier   rests    upon   the 
customer.! 

351.  Where  the  carrier  is  styled  an  "  insurer,"  this  is  not 
meant  in  any  technical  sense.'^ 

352.  As  to  the  transportation  of  live  animals  peculiar  con- 
siderations arise,  especially  where  they  are  transported  by  the 
wholesale.  Litigation  over  the  liability  for  such  transporta- 
tion involves  usually  two  elements  of  especial  difficulty :  one, 
the  animal's  own  nature  and  disposition ;  the  other,  tlie  be- 
havior of  the  owner,  or  his  drover  or  servant,  who  may  have 
accompanied  the  creature  on  the  transit.  A  public  carrier 
incurs  all  the  usual  risks  of  his  profession  at  the  common 
law,  wdth  reference  to  brute  creatures  that  he  undertakes  to 
transport;  for  these  are  chattels.^  He  must  fasten  up  and 
secure  the  animal  well,  to  prevent  its  escape ;  ^  and  must  put 

^  Where  goods  are  found  damaged  at  the  end  of  the  transit,  and  it  is 
left,  on  the  whole,  in  doubt,  uj^on  the  owner's  suit,  what  the  real  cause 
of  injury  was,  so  that  the  loss  or  damage  may  as  well  be  attributed  to 
the  carrier's  excepted  cause  as  to  the  carrier's  negligence,  the  phiintiff, 
it  is  held,  cannot  recover.  Muddle  v.  Stride,  9  C.  &  P.  380;  Clark  v. 
Barnwell,  12  How.  (U.  S.)  272.  Damage  which  appears  to  be  the  result  of 
the  inhei'ent  nature  or  inherent  defect  of  the  thing  of  course  relieves  the 
carrier.  3  Woods  (U.  S.),  380:  12  Fed.  (U.  S.)  876  (decay  of  perishable 
articles  or  horse's  sickly  condition).  But  where  the  evidence  imputes 
actual  carelessness  or  misconduct  to  the  carrier,  on  the  owner's  showing, 
all  the  more  surely  is  his  case  established  against  the  carrier.  St'e  Little 
V.  Boston  R.,  6G  Me.  239.  A  case  being  made  out  of  delivery  in  good 
order  to  the  carrier  and  non-delivery  over,  the  burden  shifts  to  the  carrier 
in  conformity  with  the  rule  already  stated.  J!)  Th-x-.  9(>j  Browning  v. 
Trans.  Co.,  78  AVis.  391 ;  cases  sw/»-a.  But  some  evidence  of  non-delivery, 
accoidiiig  to  the  carrier's  obligation,  ought  to  be  shown.  Roberts  v. 
Chittenden,  88  N.  Y.  33. 

Care  and  diligence  is  according  to  circumstances.  See  Wolf  v.  Ameri- 
can Express  Co.,  43  Mo.  421  ;  67  P^ed.  (U.  S.)  426;  §  441. 

2  §440;  Nettles  v.  Railroad  Co.,  7  Rich.  (S.  C.)  1!)0;  13  Ind.  263; 
12  La.  An.  352  (abandonment  rule).  And  see  as  to  subrogation  of  insur- 
ance company.  Mobile  R.  v.  Jarey,  111  U.  S.  584. 

8  §442;  Nugent  v.  Smith,  1  C.  P.  D.  19,  423;  McCoy  v.  K.  &  D. 
M.  R.,  44  Iowa,  424. 

4  68  Ark.  218;  2  Stark.  323;  8  Humph.  (Tenn.)  497.  Cf.  Blower  v. 
CJreat  Western  R.,  L.  R.  7  C.  P.  655. 


BAILMENT  RESPONSIBILITY  OF  COMMON   CARRIER      199 

it  in  some  suitable  place  which  may  afford  reasonable  shelter 
and  protection.  He  must  not  endanger  tlie  creature's  life  and 
health  by  neglecting  to  provide  food,  water,  and  the  means  of 
repose  or  needful  exercise  on  the  journey.^  In  case  of  delay 
or  accident,  from  whatever  cause,  he  must  reasonably  regard 
the  comfort  and  safety  of  the  creatures  intrusted  to  his  care, 
whether  in  keeping  them  on  board  or  unloading  and  re-load- 
ing them.2  Where  cattle  are  transported  by  rail  in  large 
numbers,  cars  of  a  peculiar  construction  are  commonly  used  ; 
but  whatever  the  -vehicle,  or  part  of  a  vehicle,  assigned  to 
animals,  this  must  be  of  strength  reasonably  sufficient  to  keep 
them  from  breaking  through,  escaping,  or  doing  themselves 
serious  damage,  and  in  all  respects  well  adapted  for  the  pecu- 
liar transportation  purpose.^  UnreasonabLe  delay  or  unrea- 
sonable exposure  might  be  at  the  beginning  or  end  of  the 
transit  or  at  some  intermediate  point.*  In  short,  the  carrier 
of  animals  is  responsible  for  any  loss  or  injury  whicli  the 
pursuance  of  ordinary  diligence  and  skill  in  his  vocation 
might  have  obviated ;  and  he  will  be  charged  as  their  insurer, 
save  so  far  as  he  can  bring  himself  within  some  one  or  more 
of  the  recognized  exceptions  of  the  law.^  But  the  common 
carrier  of  animals  does  not  necessarily  make  himself  an  in- 
surer against  a  loss  or  injury  which  is  really  attributable  to 
the  nature,  habits,  disposition,  and  propensities  of  the  ani- 
mals, and  such  as  ordinary  diligence  on  his  part  would  not 

1  Illinois  Central  R.  v.  Adams,  42  111.  474;  71  111.  434;  Harris  v. 
Northern  Indiana  R.,  20  N.  Y.  232;  Dunn  v.  Hannibal  R.,  68  Mo.  2iJ8. 

2  Kinnick  v.  Chicago  R.,  69  Iowa,  665. 

3  Cf.  Harris  v.  Northern  Indiana  R.,  20  N.  Y.  232;  Welsh  v.  Pittsburg 
R.,  10  Ohio  St.  65;  Indianapolis  R.  r.  Strain,  81  III.  504;  184  111.  57;  Pratt  v. 
Ogdensburg  R.,  102  Mass.  557;  Railroad  Co.  v.  Pratt,  22  Wall.  (V.  S.) 
123;  Hawkins  v.  Great  Western  R.,  17  Mich.  57;  29  Fed.  R.  373.  If 
cars  are  built  suitably  and  strongly  enough  for  animals  ordinarily  vicious 
and  unruly,  the  carrier  has  done  his  duty  sufficiently.  Selby  v.  Wil- 
mington R.,  113  N.  C.  588. 

*  Where  live-stock  are  delayed  by  stress  of  bad  weather,  they  should 
be  suitably  sheltered  according  to  their  natural  requirements.  Feinberg 
V.  Delaware  R.,  52  N.  J.  451.     And  see  71  JNIiss.  757. 

6  §  442.    See  Evans  v.  Dunbar,  117  Mass.  546. 


200  THE   LAW   OF  BAILMENTS 

probably  have  prevented.  Should  the  animal  sicken,  pine  away, 
and  die  a  natural  death ;  or,  because  of  iright,  restlessness,  or 
viciousness,  inflict  injury  on  itself  or  other  animals  of  the 
same  owner ;  or  even  should  it  escape,  —  it  is  the  owner  who 
must  bear  the  loss,  so  long  as  the  cari-ier  appears  to  have 
faithfully  performed  his  own  duty  as  the  undertaking  bound 
liim.i  The  principle  of  this  exception  is  analogous  to  that 
already  noticed,  where  goods  spoil  and  deteriorate  from  in- 
herent defects,  and  other  natural  causes ;  no  blame  attaching 
to  the  party  transporting  them.''^    '^A  / 

353.  If  the  consignor,  or  his/ Idro-^er  jpA4ervant,  travels  -with  his 
own  live-stock,  as  in  a^cattlfe-Aram  (|)f  our  modern  times,  he 
relieves  the  cariiei  from  tllB/fccti\Tp  care  of  the  creatures,  in  so 
far  as  he  assuipe.'/;Siich|^re  for  nimself.  Within  his  under- 
stood sphere  of/4cM^i,  as  for  feeding  and  watering,  or  the 

tatment  ojjbi'uises  and  disease,  a  person  thus  travelling  in 
cl  firgeADi)^5ne's  stock  as  care-taker  is  more  immediately  an- 

ef4]^^  than  the  carrier ;  and  for  negligence  or  misconduct 
is  part,  productive  of  injury,  or,  indeed,  for  damage  occa- 
sioned by  him,  whether  culpably  or  not,^  the  carrier  may  set 
up  that  it  was  the  consignor's  or  customer's  act.*  This  as- 
sumes, however,  that  the  carrier  was  not  himself  at  apparent 
fault ;  for,  whether  in  intermeddling,  or  while  attending  to 

1  Blower  v.  Great  Western  R.,  L.  R.  7  C.  P.  655;  Kendall  v.  London 
R.,  L.  K.  7  Ex.  373;  Smith  v.  New  Haven  R.,  12  Allen  (Mass.),  531  ; 
3  Met.  (Ky.)  51;  Mynard  v.  Syracuse  R.,  71  N.  Y.  180;  Central  R.  v. 
Smitha,  85  Ala.  47;  Louisville  R.  v.  Bigger,  66  Miss.  319;  Coupland  v. 
Housatonic  R.,  61  Conn.  531;  81  Mo.  App.  109;  110  Ga.  659.  Still 
clearer  is  the  excuse  where  such  mischief  develops  in  the  course  of  some 
irresistible,  natural,  and  hence  excusable  calamity.  Nugent  v.  Smith, 
1  C.  P.  D.  19,  423. 

2  Ante,  332. 

8  Hart  V.  Chicago  R.,  69  Iowa,  485  (fodder  set  on  fire  by  the  drover 
in  chartje,  though  not  carelessly)  ;  87  Ga.  463. 

1  Wilson  V.  Hamilton,  4  Ohio  St.  722;  Evans  v.  Fitchburg  R.,  Ill 
Mass.  142;  Heller  v.  Chicago  R.,  Mich.  (1890)  (no  care-taker  sent  as 
jiromised);  Hengstler  v.  Flint  R.,  125  Mich.  430.  Consignor  at  fault 
who  does  not  send  a  drover  when  he  agreed  to  do  so.  117  Ga.  832.  But 
in  absence  of  agreement  or  undertaking  to  send  a  drover,  the  carrier 
must  bear  his  full  risks.     61  Neb.  618. 


or 


BAILMENT  RESPONSIBILITY   OF   COMMON   CARRIER      201 

running  the  train  or  other  transit  duties  of  his  own  or  super- 
vising the  carriage  of  the  creatures,  the  carrier  continues  re- 
sponsible for  all  such  damage  as  his  misconduct  or  want  of 
ordinary  diligence  may  have  inflicted ;  and  as  a  public  carrier, 
lie  continues  in  a  considerable  measure  the  insurer  of  such 
freight.^  He  must  at  least  give  any  such  care-taker  on  the 
shipper's  behalf  full  opportunity  to  take  care.^ 

354.  Ferry  transportation  furnishes  another  instance  of  mixed 
custody  in  transportation,  as  concerns  the  liability  for  horses 
and  teams  on  board.  As  this  business  is  usually  conducted  at 
the  crowded  centres  of  trade,  the  ferry  seldom  takes  entire 
charge  of  such  property,  but  leaves  the  driver  to  cross  in 
charge  of  his  team.  A  ferryman  is  bound  to  keep  his  slips  in 
good  order,  and  to  provide  suitable  means  of  ingress  and 
egress ;  to  have  a  boat  stanch,  strong,  and  seaworthy,  well 
constructed  and  fitted  up  for  its  pecuhar  service,  and  properly 
manned,  equipped,  and  managed  ;  and  to  maintain  reasonable 
safeguards,  and  enforce  such  customary  rules  as  may  keep 
the  boat  well  trimmed  on  its  passage  and  promote  the  general 
security  and  comfort  in  person  and  property  of  all  concerned. 
He  must  not  overload,  nor  venture  out  imprudently  in  bad 
weather,  without  the  means  of  averting  possible  dangers. 
Should  damage  result  from  his  violation  of  such  plain  duties, 

1  Sneesby  v.  Lancashire  R.,  L.  R.  9  Q.  B.  263;  s.  c.  1  Q.  B.  D.  42; 
Powell  V.  Pennsylvania  R.,  32  Penn.  St.  Hi;  Illinois  Central  R.  v. 
Adams,  42  III.  474;  Cragin  v.  N.  Y.  Central  R.,  51  X.  Y.  61.  See 
Coupland  r.  Housatonic  R.,  61  Conn.  531. 

-  §  443;  Smith  v.  Michigan  R.,  100  Mich.  148. 

In  general  it  may  be  added  that  the  customer  sometimes  participates 
or  takes  the  entire  charge,  in  loading  his  animals  on  board  a  cattle  car. 
East  Tennessee  R.  v.  Whittle,  27  Ga.  535 ;  Harris  v.  Northern  Indiana  R.,  20 
N.  Y.  232  (selection  of  a  car).  And  so,  too,  as  to  the  method  of  fastening 
tlie  animal  he  offers,  any  consignor  may  be  held  responsible,  on  the  general 
principle  of  proper  "packing,"  etc.  See  curious  distinction  made  in 
Ricliardson  r.  North  Eastern  R.,  L.  R.  7  C.  P.  75  (dog  slipping  a  noose 
or  collar).  A  consignor  may  be  presumed  better  acquainted  with  his 
animal's  propensities  than  the  carrier,  and  hence  should  take  due  pre- 
cautions. And  see  54  Mo.  385;  Evans  v.  Fitchburg  R.,  Ill  Mass.  142; 
Rixford  v.  Smith,  52  N.  H.  355. 


202  THE   LAW   OF   BAILMENTS 

the  carrier  must  respond  to  his  patron  who  suffera  in  conse- 
quence.^ But  if  the  ferryman  discharge  his  duty  in  the 
premises  with  ordinary  diligence  and  discretion,  and  the  loss 
be  occasioned  by  the  animal's  restiveness,  viciousness,  or 
other  inherent  fault,  the  owner  must  suffer  for  it ;  and  so,  too, 
where  the  owner  or  his  servant,  instead  of  surrendering  the 
animal  to  the  ferryman's  entire  custody,  drives  on  board, 
selects  his  place,  and,  undertaking,  in  fact,  to  look  after  his 
creature,  occasions  the  damage  by  neglecting  to  do  so.- 

355.  Expressions  common  in  our  modern  bills  of  lading  and 
similar  documents  of  common  carriage  illustrate  further  the 
common-law  doctrines  of  liability  already  discussed.  Phrases 
of  corresponding  tenor  might  be  cited,  too,  from  marine  in- 
surance policies."     But  any  and  all  terms  of  exception,  such 

1  §  445;  2  Nott  ^  McC.  (S.  C.)  19  ;  5  iNIo.  36;  Ferris  v.  Union  Ferry 
Co.,  36  N.  Y.  312;  Miller  v.  Pendleton,  8  Gray  (Mass.),  547  ;  Willougliby 
V.  Horridge,  12  C.  B.  742;  20  111.  504. 

2  3  ]Met.  (Ky.)  51;  Lewis  ij.  Smith,  107  Mass.  334;  7  Cush.  (Mass.) 
155.     Cf.  5  Cal.  360. 

3  §  446.  The  stated  exceptions  under  a  bill  of  lading  or  stated  risks 
in  a  policy  of  insurance  vary,  of  course,  with  time  and  circumstances 
and  the  changing  methods  of  transportation.  But  the  following  are  the 
phrases  most  commonly  employed  in  carriage  by  water,  to  which  special 
allusion  is  made  in  the  text : 

1.  Exception  of  ^^ perils  of  the  sea,'''  or  "  perils  of  navigation."  The  former 
expression,  which  for  a  long  time  was  the  only  one  used  by  English 
carriers  in  merchant  vessels  under  bills  of  lading,  covers,  doubtless, 
natural  accidents  peculiar  to  that  element.  But  the  phrase  is  by  no 
means  synonymous  with  "  act  of  God  "  ;  for,  excluding  on  the  one 
hand  altogether  the  idea  of  land  calamities,  it  has  on  the  other  hand 
been  judicially  interpreted  so  as  to  protect  various  losses  by  sea  which 
are  not  referable,  on  the  principles  already  discussed,  to  the  intervention 
of  Providence.  "  Perils  of  navigation  "  is  a  phrase  of  much  the  same 
import,  which  is  now  sometimes  preferred  to  "perils  of  the  sea,"  as 
less  technical.  Loss  by  fire  or  explosion,  however,  is  not  thus  included. 
Morewood  r.  Pollok,  1  E.  &  B.  743;  Propeller  Mohawk,  8  Wall.  (U.  S.) 
153;  1  Sprague  (U.  §.),  477.  See  further,  § 446  ;  Southgate,  The,  (1893) 
Prob,  329;  McKinlay  v.  Morrish,  21  How.  (U.  S.)  243  (sweating); 
L.  C.  3  C.  P.  476  (collision). 

2.  Exce/>lion  of  ^' dangers,"  ^^  accidents,"  etc.  "Accident"  excludes 
human  design;  wiiile  "danger"  maybe  considered  a  generic  term,  of 


I 
4 


BAILMENT  RESPONSIBILITY  OF  COMMON  CARRIER      203 

as  express  contract  creates  in  favor  of  the  carrier,  must  be 
distinguished  from  those  three  sanctioned  and  firmly  estab- 

which  "  peril  "  is  the  specific,  as  importing  some  imminent  danger.  But 
whether  an  exception  of  "  dangers  and  accidents  of  the  seas  and  naviga- 
tion "  is  to  be  construed  as  essentially  different  from  "  perils  of  the  seas," 
may  well  be  doubted.  See  15  M.  &  W.  746.  After  much  dispute  it  is 
settled  in  England  that  damage  done  by  water  entering  through  holes 
made  by  rats  is  within  the  exception  of  i"  dangers  and  accidents,"  etc. 
Pandorf  v.  Hamilton,  12  App.  Gas.  518. 

3.  Exception  of  "■  danqers  "  or  "■perils  "  of  the  "  river,"  of  ^'  lake  naciga- 
tion,^^  etc.  Clauses  of  this  description  are  often  found  in  modern  bills  of 
lading,  but  less  in  Gi'eat  Britain  than  America,  where  iidand  navigation  is 
of  so  vast  consequence.  By  such  expressions,  ordinary  dangers  or  perils, 
corresponding  to  those  of  the  sea,  which  attend  the  inland  navigation 
referred  to,  are  mainly  intended.  Transportation  Co.  v.  Downer,  11 
Wall.  (U.  S.)  129.  But  the  peculiarities  which  distinguish  transit  by 
inland  waters  from  that  by  sea  are  not  to  be  forgotten.  See  further, 
§  446;  Hays  v.  Kennedy,  41  Penn.  St.  378;  (rarrison  v.  Memphis,  19 
How.  (U.  S0312;  30  Ala.  60S  ;  Hibler  r.  McCartney,  31  Ala.  501  ;  Kay  v. 
Wheeler,  L.  R.  2  C.  P.  302  ;  8  W.  &  S.  (Penn.)  44  ;  7  Yerg.  (  Tenn.)  340 ;  28 
Mo.  323;  55  Ala.  387  (collision).  It  is  peculiarly  incumbent  upon  a 
carrier  who  navigates  inland  waters  to  avoid  running  ashore,  to  keep 
clear  of  other  craft,  and  to  look  out  for  bridges.  The  Lady  Pike,  21 
Wall.  (U.  S.)  1;  The  Mohler,  21  Wall.  (U.  S.)'230. 

4.  Exception  of"  restraint  of  princes,"  "  losses  b;j  theking^s  enemies"  etc. 
As  to  siege  or  blockade,  see  Rodocanachi  v.  Elliott,  L.  R.  8  C.  P.  649 ; 
9  Allen  (Mass  ),  299. 

5.  Miscellaneous  phrases  of  exception.  The  present  tendency  of  com- 
mon carriers  and  insurers  is  to  multiply  words  and  expressions,  so  as  more 
clearly  to  except  particular  perils,  dangers,  and  accidents,  which  are  not 
embraced  in  general  })hrases  like  the  foregoing.  How  eagerlj',  in  fact, 
railways  and  ship-owners  run  to  cover  behind  special  contract  provisions 
of  their  own  framing  will  better  appear  in  our  next  chapter.  Among  the 
more  striking  of  these  miscellaneous  exceptions,  are  these  :  "  Stranding." 
8  Bing,  458;  7  T.  R.  210;  33  \V.  R.  342  (-'jettison  and  strandmg  "). 
Loss  by  "  fire,"  or  "  accidental  fire,"  "  explosion,"  etc.  5  Wis.  454  ;  Bank 
of  Kentucky  v.  Adams  Express  Co.,  93  U.  S.  174;  3  Iowa,  532;  66  Vt. 
290.  Loss  by  "thieves"  or  "  robbers."  Taylor  v.  Liverpool  Steam  Co., 
L.  R.  9  Q.  B.  546  ;  De  Rothschild  v.  Steam  Packet  Co.,  7  Ex.  734. 
"  Damage  to  goods  which  can  be  insured  against  "  ;  a  phrase  referring  to 
damage  by  the  loss  or  destruction  of  the  goods,  but  not  to  loss  by  their 
abstraction.  Taylor  r.  Liverpool  Steam  Co.,  L.  R.  9  Q.  B.  546.  "  Dan- 
gers of  the  roads,"  which  commonly  means,  as  employed  in  water  car- 
riage, dangers  of  marine  roads  ;  or,  if  in  land  carriage,  then  such  dangers 


204  THE   LAW   OF   BAILMENTS 

lished  by  our  Anglo-Saxon  public  policy,  and  which  this  chap- 
ter has  aimed  to  set  forth ;  viz.,  act  of  God,  act  of  public 
enemies,  act  of  consignor  or  customer;  to  which  we  have 
added,  act  of  public  authority.  These  and  other  contract  ex- 
ceptions remain  for  discussion  in  our  next  chapter.^ 

as  the  overturning  of  a  carriage  in  rough  and  bad  places.  De  Rothschild 
c.  Royal  Mail  Steam  Packet  Co.,  7  Ex.  734.  Loss  by  "capture."  '  Losses 
by  vermin,  by  leakage,  by  breakage,  by  pilferage,  by  accidents  of  ma- 
chinery, and  the  like,  are  also  found  expressly  excepted ;  in  short,  the 
enumeration  takes  often  a  very  wide  range,  making  verbal  mention  even 
of  the  common-law  instances  of  exemption  at  the  same  time.  See  7  Ex. 
73t ;  L.  R.  9  Q.  B.  546 ;  OhrlofE  v.  Briscall,  L.  R.  1  P.  C.  231 ;  Edwards 
V.  Steamer  Cahawba,  14  La.  An.  224  ;  The  Pereire,  8  Ben.  (U.  S.)  301. 

^  §  416.  The  courts,  in  construing  all  such  phrases  as  these,  will  very 
propeily  decline  to  infer  a  mutual  intention  that  the  loss  shall  excuse  the 
carrier,  regardless  of  his  agency  therein.  Hence,  under  an  exception 
of  "fire,"  '' theft,"  "  capture,"  "  leakage,"  "  breakage,"  "jettison  and 
stranding,"  and  the  like,  the  peril  stated  must  have  been  the  real  cause 
of  damage ;  not  the  dereliction  of  duty,  culpable  negligence,  or  bad  con- 
duct of  the  carrier  himself,  without  which  the  disaster  would  not  have 
happened  ;  though,  whether  such  construction  be  founded  in  a  fair  inter- 
pretation of  what  the  parties  meant,  or  a  deeper  public  policy  against 
which  private  convention  is  powerless,  is  not  universally  settled  in 
England  and  America,  as  the  next  chapter  will  show. 

We  may  here  add  that,  in  general,  causes  of  exemption  enumerated 
under  bills  of  lading  and  insurance  policies  are  not  to  be  extended,  by 
inference,  for  the  carrier's  undue  advantage.  For  instance,  a  loss  by 
theft  or  robbery,  when  committed  by  persons  on  board  ship,  or  by  per- 
sons coming  to  the  vessel  while  not  on  the  high  seas,  is  not  a  "piracy," 
nor,  of  course,  a  peril  of  the  .seas.  King  i'.  Shepherd,  3  Story  (U.  S.), 
849;  De  Rothschild  v.  Royal  Mail  Steam  Packet  Co.,  7  Ex.' 734.  By 
"thieves"  is  meant,  presumably,  thieves  external  to  the  ves.sel  or  other 
veliicie,  and  not  a  thievish  servant,  sailor,  or  passenger.  Taylor  v.  Liver- 
pool, &c.  Steam  Co.,  L.  R.  9  Q.  B.  546.  Even  where  "  theft  "  or  "  rob- 
bery" or  "  barratry  of  master  and  mariners  "  is  excepted,  the  carrier  has 
the  onux  of  showing  by  whom  the  crime  was  committed ;  and  if  he  cannot 
so  clear  himself,  the  owner  may  recover,  lb.  But  cf.  Spinetti  v.  Atlas 
S.  S.  Co.,  80  N.  Y.  71.  Embezzlement  is  not  a  "peril  of  the  seas." 
lb. ;  King  ii.  Shepherd,  3  Story,  319.  Nor  can  "dangers  of  the  roads  "  be 
said  to  include  dangers  from  highwaymen  or  other  human  violators  of 
the  law.     J)e  Rothschild  v.  Royal  Mail  Steam  Packet  Co.,  7  Ex.  734. 

Finally,  inasmuch  as  the  special  enumeration  of  perils  or  dangers  of 
the  seas  has  for  its  primary  object  that  of  enlarging  the  common-law  ex- 


BAILMENT   RESPONSIBILITY   OF   COMMON   CARRIER      205 

emptiou  of  "  act  of  God,"  it  will  not  be  readily  assumed  that  the  carrier 
meant  thereby  to  exclude  the  privilege  of  setting  up  any  of  his  other 
common-law  excuses,  such  as  act  of  public  enemies  or  of  the  customer. 
Even  should  he  give  a  bill  of  lading  for  delivering  goods  "  the  dangers 
of  the  seas  only  excepted,"  the  inference  is  not  conclusive  that  he  under- 
took to  be  responsible  for  losses  arisijig  from  all  other  causes,  such  as  the 
act  of  "public  enemies."  Gage  v.  Tirrell,  9  Allen  (Mass.),  299.  And 
see  Morrison  v.  Davis,  20  Penn.  St.  171.  In  short,  a  hidden  and  obscure 
meaning  will  not  be  sought  for  where  an  obvious  meaning  applies.  Texas 
R.  V.  Rei.ss,  183  U.  S.  621. 

The  reader  should   study  the  foregoing  note  in  connection  with  our 
next  chapter. 


CHAPTER  V. 

USAGE,    SPECIAL    CONTRACT,    AND    LEGISLATION,    AFFECTING 
THE   COMMON   CAKIUEH'S   BAILMENT   RESPONSIBILITY. 

356.  Modern  qualifications  of  the  carrier's  liability  are  now 
to  be  considered  at  length.  Were  that  habiUty  dependent 
entirely  upon  the  rules  set  forth  in  our  preceding  chapter,  its 
breadth  and  compass  might  by  this  time  have  been  grasped  by 
the  investigator  with  tolerable  firmness ;  notwithstanding  that 
quivering  play  of  proximate  and  remote  cause,  of  divine  and 
human  agency,  of  contributory  negligence  now  on  the  bailee's 
and  now  on  the  bailor's  part,  which  so  eludes  the  effort  to 
generalize  broadly  from  precedents  and  the  given  facts  of  a 
particular  case.  But  the  Anglo-Saxon  carrier,  grown  to  man- 
hood with  the  cords  about  his  limbs  which  public  policy  fas- 
tened there  wliile  he  was  an  infant,  has  struggled  with  more 
purpose  to  shuffle  them  off  than  has  the  law  to  knot  them 
tighter ;  and  in  the  course  of  events  the  force  of  ancient  maxim 
has  been  considerably  spent :  the  old  priming  is  overlaid  in 
these  days  with  coats  of  diverse  tints ;  and  while  the  basis  of 
our  bailment  responsibility  continues,  as  already  shown,  non- 
exemption,  save  for  act  of  God,  act  of  public  enemies,  act 
of  consignor  or  customer,  and  act  of  public  authority,  special 
variance  in  responsibility  may  be  established:  (I.)  by  usage; 
(11.)  by  special  contract;  or  (III.)  by  legislation.  Under, 
then,  these  three  separate  heads  in  order,  which  suggest  quali- 
fications possible  in  any  bailment  relation,  we  shall  discourse 
in  tlie  present  chapter.^ 

357.  I.  Effect  of  Usage.  Usage,  in  its  legal  aspect,  shapes 
and  modifies  a  contract  only  so  far  as  some  uniform,  reason- 
able, and  continuous  business  method  of  the  jurisdiction  may 
be  taken  to  have  influenced  the  mutual  intent  of  both  parties 
concerned  in  a  particular  transaction.    Custom  antedates  judi- 

1  §447. 


CONTRACT  AFFECTING     CATIEIER'S   LIABILITY  207 

cial  sanction  in  most  instances ;  and  not  to  recognize  its  just 
force  as  shaping  the  social  and  business  intercourse  of  man- 
kind would  be  to  set  the  courts,  whose  machineiy  was  con- 
trived for  bending  individuals  to  the  public  will,  into  hopeless 
encounter  with  the  public  will  itself  and  the  irresistible  forces 
of  human  society.  Usage  distinguishes  between  carriage  by 
land  and  carriage  by  water ;  and  in  either  branch  of  the  busi- 
ness permits  one  to  confine  himself  to  special  modes  of  loco- 
motion, to  choose  specific  routes  with  fixed  termini,  and,  in  a 
measure,  to  put  definite  limits  to  the  kinds  of  property  or  the 
classes  of  customers  he  purposes  dealing  with.  Usage  among 
ordinarily  prudent  carriers  of  the  same  class  under  similar 
circumstances  will  largely  determine,  too,  what  care,  skill, 
and  diligence  should  be  employed  towards  averting  or  lessen- 
ing the  injurious  consequences  of  a  disaster  otherwise  excus- 
able.^ •  But  usage  cannot  be  set  up  to  absolve  a  carrier  from 
the  ordinary  duties  which  public  policy,  his  general  undertak- 
ing, or  an  express  promise  may  have  bound  him  to ;  instead 
of  diverting,  it  shapes  the  natural  course  of  the  current ;  and 
its  controlling  influence  is  spent,  after  all,  within  the  usual 
narrow  and  well-recognized  confines.^ 

358.  II.  Effect  of  Special  Contract.  By  some  special  agree- 
ment or  acceptance,  the  common  carrier,  it  was  always  conceded, 
might,  like  other  bailees,  either  limit  or  extend  his  general 

1  §448;  1  Blatclif.  (U.  S.)  520;  Rich  v.  Lambert,  12  How.  (U.  S.) 
347.  Usage  may  thus  enlarge  rather  than  diminish  the  scope  of  a  car- 
rier's duty. 

2  §  448;  Newall  v.  Royal  Shipping  Co.,  33  W.  R.  342;  22  Fed.  R.  680; 
19  Peiin.  8t.  243;  Cox  v.  Peterson,  30  Ala.  608;  5  Wis.  4-54;  McMasters 
V.  Penn.  R.,  69  Penn.  tet.  374.  Usage  ol  refrigerator  cars  is  enforced  in 
Beard  v.  Illinois  Central  R.,  79  Iowa,  518;  159  111.  53.  And  as  to  venti- 
lated cars,  see  173  Penn.  St.  398.  Usage  of  express  companies  to  seal 
money  packages  may  also  bind  the  carrier.  7  Col.  43.  See,  as  to  usage 
of  carrying  live-stock  in  vessels  or  cars  free  from  contagious  diseases, 
Tattersall  v.  Steamship  Co.,  12  Q.  B.  D.  297;  Illinois  Cent.  R.  v.  Harris, 
184  111.  57. 

A  carrier  cannot  set  up  his  own  unsafe  and  unreasonable  usage,  though 
long  continued.  143  Mass.  307.  Nor  that  of  requiring  a  shipper  to  ac- 
company his  live-stock.  '{'2  Tex  127.  As  to  usage  of  carrying  iu  open 
cars,  see  88  Tenn.  653. 


208  THE  LAW  OF  BAILMENTS 

obligation  in  a  particular  transaction.  But  whether  private 
agreement  can  thus  be  made  to  thwart  and  defeat  the  well- 
considered  policy  of  our  law,  and  if  so,  to  what  extent,  is  a 
vital  issue  on  which  the  later  English  and  American  courts 
have  asserted  their  authority  so  differently,  within  their  re- 
spective jurisdictions,  that  the  course  of  their  decisions  should 
be  presented  separately,  in  order  to  be  intelligently  compre- 
hended and  brought  into  comparison.  At  the  same  time,  our 
general  theory  must  avail  that,  as  in  all  bailments,  no  special 
contract  should  transcend  the  limits  defined  by  public  policy, 
whatever  those  limits  may  be.^ 

359.  As  to  the  English  doctrine.  Lord  Coke  and  Sir  Matthew 
Hale  early  intimated  that  the  common  carrier  had  the  right  to 
make  a  qualified  acceptance,  so  as  not  to  be  chargeable  generally 
on  his  undertaking.^  Lord  Mansfield  ^  and  Lord  Kenyon  ^  em- 
phasized this  view  of  the  law,  which,  by  the  beginning  of  the 
nineteenth  centur}^  had  become  so  rooted  in  the  English  mind 
that  the  almost  universal  practice  of  common  carriers  by  land 
and  water  had  become  to  except,  under  a  special  contract, 
various  risks  of  loss  from  which  the  common  law  itself  would 
not  have  excused  them.  This  course  of  business,  which  no 
English  court  of  justice  had  ever  denounced,  and  to  which 
Parliament  itself  had  lately  given  a  colorable  sanction,  Lord 
Ellenborough  felt  compelled,  in  an  important  case  coming 
before  him  in  1804,  to  uphold,  notwithstanding  the  weighty 
argument  made  by  opposing  counsel,  to  the  effect  that  this 
special  acceptance  of  the  carrier  was  in  fact  subversive  of  the 
time-honored  policy  of  the  law,  regarding  parties  who  exercised 
that  vocation.^     The  old  mode  of  declaring  against  carriers  in 

1  §  449;  ante,  10. 

2  See  4  Co.  84  n. ;  Morse  v.  Slue,  1  Vent.  190. 
8  Gibbon  v.  Paynton,  4  Burr.  2li98. 

4  Peake  Add.  Cas.  185;  Hide  v.  Trent  &  Mersey  Nav.  Co.,  1  Esp.  36. 

6  Nicholson  v.  Willan  (1804),  5  East,  507.  The  effect  of  the  special 
acceptance  here  was  to  relieve  a  carrier  by  stage  altogether  from  liability 
for  parcels  over  a  certain  value,  unless  specially  hooked  and  paid  for  as 
freight.  And  see  Maviug  u.  Todd,  1  Stark.  72  (a.  d.  1815),  as  to  losses 
by  fire. 


CONTRACT  AFFECTING  CARRIER'S  LIABILITY  209 

common-law  practice  was  on  the  custom  of  the  realm  ;  but  it 
had  now  come  to  be  in  assumpsit  for  these  special  acceptances, 
as  though  the  particular  contract,  and  not  public  polic}-,  should 
govern  the  bailment  transaction.  Gradually  the  English  doc- 
trine adapted  itself  to  this  latter  theory.^  B}^  the  middle  of 
the  nineteenth  century  it  became  clearly  settled  in  Great 
Britain  that  a  carrier  could,  by  a  special  notice  brought  home 
to  his  customer,  procure  what,  for  organized  companies  en- 
gaged in  transportation  and  acting  solely  by  servants,  must 
have  been  tantamount  to  an  entire  exemption  from  legal 
responsibility.^ 

360.  Later  English  legislation  has,  since  1854,  given  a  different 
direction  to  the  doctrine,  so  far  at  least  as  concerns  railway 
and  canal  traffic.  Such  decisions  as  the  foregoing  created 
profound  dissatisfaction  in  the  community.  For  steam  rail- 
ways now  came  into  general  use,  easily  supplanting  other 
carriage  rivals  inland  wherever  they  were  extended.  Man- 
aged with  energy,  endowed  with  capital,  and  retaining  upon 
large  fees  the  keenest  legal  talent  of  the  land  in  their  inter- 
ests, these  companies  fought  as  cari-iers  had  never  done  before 
for  the  privilege  of  dealing  with  customers  upon  their  own 
terms,  and  the  insertion  of  such  special  conditions  in  freight 

^  §  450.  By  construction  of  the  Carriers'  Act  of  1830,  it  was  held  that 
a  carrier  might  exempt  himself  from  liability  for  the  fraud,  misconduct, 
or  gross  negligence  of  his  servants.  See  Hinton  v.  Dibbin,  2  Q.  B.  646 
(1842);  Peek  v.  North  Staffordshire  R.,  10  H.  L.  473,  494;  10  C.  B.  494; 
7  Ex.  707;  McManus  r.  Lanca,shire  R.,  2  H.  &  N.  693. 

■^  The  sudden  expansion  of  the  steam  railway  system,  with  its  humble 
pioneer,  the  canal,  was  by  that  time  noticeable.  While,  therefore,  one 
might  now,  under  English  sanction,  stipulate  as  common  carrier  for 
obtaining  special  immunity  against  losses  which  the  default  or  miscon- 
duct of  those  he  employed  in  the  course  of  his  undertaking  might  occa- 
sion, we  may  well  suppose  that,  for  his  own  personal  gross  negligence, 
fraud,  or  misconduct,  the  common  carrier  still  continued,  by  legal  infer- 
ence, chargeable.  See  Wyld  v.  Pickford,  8  M.  &  W.  443,  460.  But  the 
carrier  capitalist  reaped  the  advantage  of  the  law.  It  became  well  under- 
stood that  the  Carriers'  Act  of  1830  did  not  preclude  the  carrier  and  his 
customer  from  entering  into  a  special  contract  which  should  shift  the 
legal  risks  practically  from  the  former  to  the  latter,  "  however  caused." 
§450. 

14 


210  THE   LAW   OF   BAILMENTS 

contracts  as  should  to  the  utmost  increase  their  profits  by 
reducing  the  legal  risks  to  the  lowest  point.  They  claimed 
tlie  same  right  of  special-contract  exemption  whicli  the  court 
had  conceded  to  stage-owners ;  and  the  right  was  accorded.^ 
The  judicial  decisions  which  were  riveting  tlieir  shrewd  policy 
so  firmly,  Parliament  at  length  sought  to  neutralize  by  pass- 
ing, in  1854,  as  to  these  and  a  leading  class  of  inland  com- 
petitors of  inferior  consequence,  the  Railway  and  Canal  Traffic 
Act,2  whose  provisions  have  since  been  extended  by  later 
legislation,  so  as  to  embrace  steam  vessels,  and  perhaps  other 
classes  of  carriers.^  This  act,  from  which  tlie  modern  Englisli 
policy  as  to  carriers'  contracts  takes  its  departure,  made  all 
companies  of  the  description  mentioned  therein  liable  geli- 
ei'ally  for  tlie  neglect  or  default  of  the  company  or  its  ser- 
vants ;  but  witli  the  equivocal  reservation  that  such  conditions 
might  be  imposed  by  the  carrier  as  the  court  or  judge  before 
whom  any  such  question  was  tried  should  adjudge  to  be  "  just 
and  reasonable."  ^ 

1  See  Walker  v.  York  &  North  Midland  R.,  2  E.  &  B.  750;  Carr  v. 
Lancashire  R.,  7  Ex.  707. 

2  Act  17  &  18  Vict.  c.  31. 

3  Act  31  &  32  Vict.  c.  119;  Cohen  v.  South-Eastern  R.,  1  Ex.  D.  217; 
Doolan  i\  Midland  R.,  2  App.  D.  792. 

*  Railway  &  Canal  Traffic  Act,  §  7.  And  see  §  451.  At  first  some  of 
the  judges  undertook  to  thwart  by  construction  tlie  policy  of  this  act ;  but 
this  attempt  proved  abortive,  ^or  the  highest  tribunal,  the  House  of  Lords, 
sustained  the  rights  of  the  public,  as  Parliament  had  intended.  Cf.  L.  R. 
8  Q.  B.  57;  1  H.  &  N.  (33;  M'Manus  v.  Lancashire  R.,  4  H.  &  N.  327; 
Doolan  v.  Midland  R.,  2  App.  D.  792  (1877);  Peek  v.  Staffordshire  R., 
10  11.  L.  473.  Conditions  against  responsibility  on  the  carrier's  part  are 
"unjust  and  unreasonable."  1  B.  &  S.  112;  L.  R.  2  Ex.  173;  5  Ex.  D. 
190;  Gregory  v.  West  Midland  R.,  2  H.  &  C.  914;  Gill  *'.  Manchester  R., 
L.  R.  8  Q.  B.  186. 

But  special  limitations  upon  the  time  for  presenting  claims  for  damage 
are  treated  as  "just  and  leasonable."  5  H.  &  N.  867.  Also,  conditions 
against  liability  for  other  cause  than  gross  negligence  or  fraud.  5  H.  & 
N.  875,  and  3  11.  &  C.  337.  And  see  Lord  r.  Midland  R.,  L.  R.  2  C.  P. 
339;  Lewis  v.  Great  Western  R.,3  Q.  B.  1).  195.  As  to  alternative  rates 
(the  lower  rate  exempting  from  all  liability  for  loss  or  damage)  there  has 
been  some  strange  wavering;  but  the  House  of  Lords  sustained  (1882-3) 
the  practice.     See  Manchester  R.  v.  Brown,  8  App.  Cas.  703,  reversing 


CONTRACT  AFFECTING   CARRIER'S  LIABILITY  211 

361.  In  cases  of  carriage  not  embraced  under  the  Railway 
and  Canal  Traffic  Act  and  its  amendments,  as  where  one  car- 
ries freight  bj  stage-coach  or  team  in  pursuance  of  a  vocation 
Avhich  is  left  to  common-law  rules,  the  effect  of  a  special  con- 
tract still  appears  to  be,  as  understood  by  the  English  courts, 
to  exclude  the  relation  of  common  carrier  and  public  policy 
in  the  particular  instance,  and  substitute  that  of  a  carrier  who 
conveys  under  his  special  contract ;  in  other  words,  the  theory 
prior  to  1854  still  operates.^  As  for  ships  and  sailing  vessels, 
the  latest  English  cases  appear  to  allow  special  exception 
under  a  bill  of  lading  for  the  negligence  or  misconduct  of 
servants,  where  the  language  is  explicit.^ 

362.  The  American  doctrine  of  special  contract  qualification 
is  a  just  and  reasonable  one,  and  in  this  country  the  course 
of  decision  has  been  far  more  conservative,  consistent,  and 
uniform  than  in  England,  We  find  no  judicial  eccentricity 
manifested  in  dealing  with  the  rights  of  companies  organized 
for  carriage  of  freight  that  legislatures  have  felt  called  upon 
to  correct;  but  the  whole  treatment  of  this  question  with 
reference  to  the  policy  of  the  law  appears,  on  the  whole,  pru- 
dent, sensible,  and  worthy  of  public  gratitude.  In  view,  cer- 
tainly, of  the  local  independence  of  so  many  jurisdictions,  and 
of  the  conflict  and  diversity  of  State  interests  in  our  modern 
land  and  water  transportation,  the  uniform  steadiness  with 
which  American  courts  have  continued  to  hold  common  car- 
riers to  their  fundamental  obligations  in  dealing  with  the 
individual  customer,  despite  English  example  and  a  corporate 
pressure  no  less  forcible,  is  quite  remarkable.  Here,  then,  we 
find  courts  adhering  to  the  general  rule  of  bailments  that  all 
special-contract  stipulations  are  limited  by  public  policy.^ 

10  Q.  B.  D.  250,  which  reversed  9  Q.  B.  D.  230.  And  see  §  451.  See 
post  as  to  "  written  contract"  required  by  the  Act  of  1854. 

^  §  452;  Scaife  v.  Farrant,  L.  R.  3  Ex.  358;  Mr.  Justice  Gray  in  Liv- 
erpool Steam  Co.  v.  Phenix  Co.,  129  U.  S.  397,  4t7. 

2  §  452;  Mis.souri  Co.,  Re,  -12  Ch.  Div.  321;  Norman  r.  Binnington,  25 
Q.  B.  D.  475;  (1894)  1  Q.  B.  373. 

«  §  453.  See  Alexander  v.  Greene,  3  Hill  (N.  Y.),  9,  reversed  7  Mill, 
533;  1  Kern.  (N.  Y.)  485;  Xew  Jersey  Steam  Nav.  Co.  v.  Merchant's 
Bank,  6  IIow.  (U.  S.)  344  (a  leading  case,  decided  about  1849). 


212  THE  LAW  OF  BAILMENTS  ' 

363.  Our  State  and  Federal  courts  have  fairly  reached  with- 
out the  aid  of  legislation  these  quite  consistent  conclusions : 
(1)  Tliat  common  carriers  may,  by  special  agreement,  stipulate 
for  a  less  degree  of  responsibility  than  the  common  law  im- 
poses ;  and  this,  apparently,  to  the  extent  of  making  them,  in 
effect,  no  longer  what  public  policy  once  declared  them,  ex- 
traordinary bailees,  who  are  invested  with  extraordinary  risks, 
but,  what  they  would  otherwise  have  been,  ordhiar}^  bailees 
for  hire,  bound  to  the  exercise  of  honest  good  faith  and  ordi- 
nary diligence.^  (2)  But,  on  the  other  hand,  that  for  the 
culpable  negligence,  fraud,  or  misconduct  of  himself  or  his 
servants,  subordinates,  and  sub-contractors,  the  common  car- 
rier continues  answerable  in  law,  notwithstanding  any  special 
stipulations  to  the  contrary,  which  he  may  have  procured 
from  his  customer ;  this  meaning,  as  we  conceive,  not  gross 
but  ordinary  negligence,  as  in  the  case  of  other  hired  bailees, 
besides  fraud  or  misconduct.  In  fact,  the  public  carrier  may 
become  a  private  carrier,  or  mutual-benefit  bailee  of  the  ordi- 
nary sort,  by  special  contract ;  and  here  the  riglit  to  transcend 
the  safeguards  of  public  policy  ceases.^  (3)  If  the  carrier 
gives  a  lower  rate  of  recompense,  quicker  transportation,  or 
some  other  genuine  consideration  to  the  customer  in  return 
for  a  reduction  of  his  legal  risks,  more  especially  should  his 
special  stipulation  receive  favor.^ 

1  §  454;  Kirkland  v.  Dinsmore,  62  N.  Y.  171;  Camp  v.  Hartford  Steam- 
boat Co.,  43  Conn.  333;  Sager  v.  Portsmouth  R.,  31  Me.  228;  97  Me.  77; 
Hoadley  r.  Northern  Trans.  Co.,  115  Mass.  304;  4  Ohio  St.  362;  Field  v. 
Chicago  K.,  71  111.  4.58;  Powell  v.  Pennsylvania  R.,  32  Penn.  St.  414; 
Michigan  Central  R.  v.  Hale,  6  Mich.  243;  Hooper  v.  Wells,  27  Cal.  11  ; 
Rice  V.  Kansas  Pacific  R.,  63  Mo.  314;  York  Co.  v.  Central  R.,  3  Wall. 
(U.  S.)  107;  2  Rich.  (S.  C)  28G;  21  Wis.  152. 

2  Railroad  Co.  v.  Lockwood,  17  Wall.  (U.  S.)  357,  and.  many  cases 
cited;  12  B.  Monr.  (Ky.)  63;  Union  Express  Co.  v.  Graham,  26  Ohio  St. 
595;  63  Mo.  376;  Mann  v.  Birchard,  40  Vt.  326;  Bank  of  Kentucky  v. 
Adams  Express  Co.,  93  U.  S.  174 ;  Christenson  v.  American  Express  Co., 
15  Minn.  270. 

s  Dillard  v.  Louisville  R.,  2  Lea  (Tenn.),  288.  That  the  carrier 
has  two  di.stinct  liabilities  at  the  law,  one  as  an  insurer,  and  the 
other   as   an   ordinary   bailee,    see    Campbell,   J.,   in   4   Sandf.  (N.    Y.) 


CONTRACT  AFFECTING  CARRIER'S  LIABILITY  213 

364.  The  American  rule  aa  to  the  carrier's  servants  is  that 
the  carrier  must  respond  for  their  wilful  or  careless  miscon- 
duct towards  the  goods  as  for  his  own ;  and  that  the  usual 
limitations  of  an  agency  do  not  apply.^ 

365.  As  to  permitted  qualifications  by  special  contract,  our 
American  policy  permits  of  exemption  of  responsibility,  on 
the  common  carrier's  part,  for  loss  of  his  consignor's  goods  by 
any  fire  happening  without  his  own  fault.^  So,  too,  a  special 
exemption  may  properly  be  secured  by  the  carrier  against 
losses  by  "  breakage,"  "  leakage,"  "  damage  by  rats,"  and  the 
like  ;  but  not,  again,  to  the  extent  of  discharging  legal  liabihty 
for  such  a  loss,  when  produced  by  the  negligence  of  the  carrier 
and   his  servants,  or  by  his  or  their  other  plain  breach  of 

136,  145;  also  Mr.  Justice  Field  in  York  Co.  v.    Central  R.,   3  Wall. 
(U.  S.)  107. 

Our  American  doctrine  corresponds  con'^iderably  with  the  English  rule 
"just  and  reasonable,"  under  the  act  of  1S54  (o?!/e,  360).  And  see  Parke, 
B.,  in  Wyhl  v.  Fickford,  8  M.  &  W.  443;  Doct.  &  Stud.  2,  c.  38;  Noy 
Maxims,  92;  which  are  to  the  same  effect.  American  courts  cannot  dis- 
tinguish between  common  carriers  in  this  respect;  for  to  individuals, 
partners,  and  companies  alike,  the  rule  is  applied.     §  454. 

1  §  455;  Railroad  Co.  v.  Lockwood,  17  Wall.  (U.  S.)  357 ;  Alabama  R. 
»'.  Thomas,  83  Ala.  343 ;  Missouri  R.  v.  Cornwall,  70  Tj^y  fill-  Medfield  v. 
Boston,  &c.  R.,  102  Mass.  552;  Shriver  v.  Sioux  City  R.,  24  Minn.  oOG. 
And  see  97  N.  Y.  87.  A  bill  of  lading  by  sea  cannot  in  American  juris- 
diction relieve  the  carrier  for  loss  or  damage  occasioned  by  the  negligence 
of  officers  or  crew.  Liverpool  Steam  Co.  v.  Phenix  Co.,  129  U.  S.  397. 
Contrast  with  this  the  ordinary  bailee  for  hire,  ante,  86. 

2  §  456;  York  Co.  v.  Central  R.,  3  Wall.  (U.  S.)  107;  Germania  Fire 
Ins.  Co.  r.  Memphis  R  ,  72  N.  Y.  90;  Pemberton  Co.  r.  New  York  Cen- 
tral R.,  104  Mass.  144;  100  Mass.  505;  Swindler  4-.  Hilliard,  2  Rich. 
(S  C.)  286;  Wertheimer  v.  Penn.  R.,  17  Blatchf.  421  (burning  by  a 
mob)  ;  59  N.  H.  303. 

But  not  where  the  burning  was  by  his  fault,  as  the  proximate  cause, 
or  by  that  of  his  servants.  Bank  of  Kentucky  r.  Adams  Express  Co.,  93 
U.  S.  174;  Steinweg  v.  Erie  R.,  43  N.  Y.  123;  31  Ala.  .501 ;  32  Penn.  St. 
414;  Erie  R.  v.  Lockwood,  28  Ohio  St.  358;  6  Mich.  243;  63  Penn.  St. 
14;  18  Fed.  R.  318;  39  Ark.  523;  14  Bush  (Ky  ),  590.  So,  too,  where 
the  exemption  was  against  damage  by  "fire  or  water;"  and  cotton  was 
carelessly  carried  in  open  cars  and  burned  in  consequence.  New  Orleans 
R.  I'.  Faler,  58  Miss.  911  ;  60  Miss.  1003. 


214  THE   LAW  OF  BAILMENTS 

duty.i  The  same  rule,  with  its  reservations,  will  hold  true  of 
special  stipulations  against  damage  of  sea  or  river,  and  losses 
or  delays  by  unavoidable  accident,  by  thieves,  mobs,  riots,  and 
the  like  ;  ^  and  of  special  acceptances  to  carry  only  to  a  certain 
point,  and  then  forward  by  another  conveyance.^  On  the 
main  principle  thus  indicated,  no  general  stipulation  against 
liability  for  loss  "  from  whatever  cause  arising  "  can  carry  the 
sweeping  force  of  an  absolute  immunity  from  bailment  respon- 
sibility.* But  the  carrier  may  provide,  by  special  agreement, 
against  all  accountability,  save  for  the  negligence  or  miscon- 
duct of  himself  and  his  agents  ;  or,  in  other  words,  cast  off 
the  capacity  of  insurer  completely.^ 

366.  As  to  contracts  of  valuation,  the  carrier  may  state  a 
reasonable  limit  to  the  sum  for  which  he  shall  be  held  account- 
able in  case  of  any  loss ;  though  he  cannot,  where  this  sum  is 
understood  to  be  an  under-valuation  of  the  goods,  thereby 
evade  his  full  accountability  as  an  ordinary  bailee.^  Upon 
this  point  State  decisions  have  been  somewhat  at  variance ; 
but  the  better  authority  decidedly  favors  the  carrier's  right  to 
protect  himself  against  arbitrary,  fanciful,  and  extravagant 
valuations  even  where  his  own  negligence  may  have  occasioned 
the  loss,  especially  if  he  has  given  reduced  rates  in  conse- 

1  Reno  V.  Hogan,  12  B.  Monr.  (Ky.)  63;  Sager  v.  Portsmouth  R., 
31  Me.  228;  8  Ben.  (U.  S.)  139,  491. 

■^  See  Davidson  v.  Graham,  2  Ohio  St.  131  ;  4  Ohio  St.  362 ;  79 
Tex.  89. 

8  See'Reed  v.  U.  S.  Exp.  Co.,  48  N.  Y.  462;  Snider  v.  Adams  Express 
Co.,  63  Mo.  377;  Field  v.  Chicago  R.,  71  111.  4.)8;  27  Cal.  11;  15  Minn. 
270. 

4  Mynard  v.  Syracuse  R.,  71  N.  Y.  180;  6  How.  (U.  S.)  314;  Sager 
V.  Portsmouth  R.,  31  Me.  228. 

5  See  Camp  v.  Hartford  Steamboat  Co.,  43  Conn.  333;  §  456.  See 
Hoadley  v.  Northern  Trans.  Co.,  115  Mass.  304  (proximate  cause  con- 
sidered) ;  70  N.  Y.  410;  10  Wall.  (U.  S.)  176;  104  Mass.  144. 

«  §457;  United  States  Express  Co.  v.  Backman,  28  Ohio  St.  144; 
51  N.  Y.  166.  And  see  21  Wis.  152;  Squire  v.  New  York  Central  R., 
98  Mass.  239;  Railroad  Co.  v.  Lockwood,  17  Wall.  (U.  S.)  357;  South 
Alabaman,  v.  Henlein,  52  Ala.  606;  61  N.  Y.  542;  Magnin  v.  Diusmore, 
62  N.  Y.  35;  Harvey  v.  Terre  Haute  R.,  74  Mo.  538. 


CONTRACT  AFFECTING  CARRIER'S   LIABILITY  215 

quence.i  The  business  of  express  companies  is  peculiarly 
liable  to  heavy  loss  in  parcels  of  money  or  valuables  delivered 
in  closed  packages  whose  contents  are  not  apparent ;  and  late 
decisions  favor  the  right  of  such  carriers  to  limit  Hability 
reasonably  where  value  is  not  stated  at  the  outset.^ 

367.  As  to  contracts  concerning  the  time  or  method  of 
presenting  claims,  for  loss  or  damage  against  the  carrier, 
reasonable  stipulations  may  also  be  made  so  as  to  bind  the 
customer ;  '^  but  to  utterly  exclude  thereby  the  consignee's 
fair  opportunity  of  inspecting  the  property  upon  its  arrival, 
ascertaining  the  extent  of  damage,  if  any,  and  so  making  his 
claim  known  to  the  carrier,  or  his  proper  representative,  is 
not  allowable.*     All  such  stipulations  ought  in  fact  to  be 

1  See  Hart  v.  Pennsylvania  R.,  112  U.  S.  331,  approving  the  rule  of 
Massachusetts,  New  York,  Illinois,  Pennsylvania,  and  Missouri,  in  this 
respect,  and  disapproving  that  of  Ohio,  Mississippi,  Wisconsin,  Kansas, 
and  Minnesota.  And  see  Graves  v.  Lake  Shore  11.,  lo7  Mass.  33.  Cf. 
Bermel  v.  New  York  R.,  172  N.  Y.  639  (special  condition  not  clearly  ex- 
pressed) ;  Chicago  R.  v.  Calumet  Farm,  104  111.  9  (gi'oss  negligence) ;  127 
N.  C.  293;  (1899)  1  Q.  B.  309  (deviation);  158  Mo.  226  (consideration 
not  given  as  promised).  This  doctrine,  thus  carefully  announced,  must  not 
be  extended  so  as  to  conflict  with  17  Wall.  (U.  S.)  357.  And  see  144  Mass. 
284;  137  N.  Y.  460;  61  Conn.  531  ;  91  Ala.  340;  66  N.  H.  263.  Co7itra, 
55  Wis.  713;  30  Kan.  645;  60  Miss.  1017;  120  Ind.  73;  71  Ala.  611; 
31  Minn.  85;  134  Penn.  St.  310;  67  Miss.  609;  1-33  111.  96.  So  is  it  as 
to  stipulations  which  restrain  liability  to  the  invoice  value  of  goods 
carried  by  bill  of  lading.     IS  Fed.  (U.  S.)  459. 

^  See  express  receipts,  limiting  value  to  $50  unless  shipper  states  actual 
value  when  asked  by  the  carrier.  The  customer,  though  not  compellable 
to  state  value  or  contents,  increases  his  own  risk  by  his  silence.  Ballou 
V.  Earle,  17  R.  I.  441 ;  Durgin  v.  Am.  Express  Co.,  66  N.  H.  277 ;  Pacific 
Express  Co.  i'.  Foley,  46  Kan.  4c7  (1891):  96  Fed.  574;  Smith  v.  Am. 
Express  Co.,  108  Mich.  272.  Such  limitations  are  to  be  reasonable  and 
reasonably  construed.     See  36  W.  Va.  524;  46  Kan.  457,  470. 

3  §458;  Express  Co.  i'.  Caldwell,  21  Wall.  (U.  S.)  264  (ninety  days 
after  delivery  to  the  company;  the  transit  occupying  only  about  a  day). 
Contra,  44  Ala.  101,  here  commented  upon.  Had  the  transit  occupied 
ninety  days,  or  nearly,  such  limitation  would  not,  semble,  have  been  avail- 
able. And  see  Southern  Express  Co.  v.  Hunnicutt,  54  Miss.  566;  United 
States  Express  Co.  v.  Harris,  51  Ind.  127  ;  Westcott  v.  Fargo,  61  N.  Y. 
542. 

*  Rice  V.   Kansas   Pacific   R ,  63  ]\Io.  314 ;    Adams   Express   Co.    v. 


216  THE   LAW   OF   BAILMENTS 

reasonable  and  consistent  with  sound  policy  as  applied  to  the 
particular  case  ;  and  every  such  limitation  should  be  reason- 
ably interpreted.^ 

368.  The  carrier's  intention  to  enlarge,  by  special  contract,  his 
legal  risk  as  insurer,  so  as  to  make  his  responsibility  absolute, 
or  to  indemnify  against  an  excepted  peril,  will,  of  course,  be 

Reagan,  29  Ind.  21;  Capehart  v.  Seaboard  R.,  77  N.  C.  355;  Porter  v. 
Southern  Express  Co.,  4  S.  C.  n.  s.  135;  Memphis  R.  v.  Holloway,  9 
Baxt.  (Tenn.)  188.     The  limit  must  be  specially  pleaded.    61  N.  Y.  542. 

1  Jennings  v.  Grand  Trunk  R.,  127  N.  Y.  438;  68  Mo.  268.  See 
also  159  111  53;  67  Ark.  407.  Claim  of  damage  to  be  made  under  oath 
within  five  days  after  delivery  pronounced  vahd  in  Black  v.  Wabash  R.,  Ill 
111.  351 ;  153  Fenn.  St.  302.  Limit  of  thirty  days  is  reasonable.  16  Lea, 
472.  As  to  thirty  days  after  loss  occurs,  see  53  Minn.  183.  As  to  three 
months  after  lossi  see  8  C.  C.  A.  341.  Thirty-six  hours  might  be  reason- 
able in  some  cases;  but  the  peculiar  circumstances  might  make  it  un- 
reasonable. 78  Tex.  372.  That  a  claim  must  be  presented  before  a 
consignee  could  in  fact  ascertain,  would  be  unreasonable;  and  the  ques- 
tion of  reasonableness  on  the  facts  is  sometimes  left  to  a  jury.  But  the 
carrier's  exposure  to  fraudulent  claims,  if  no  reasonable  limit  is  placed 
after  he  delivers  over,  is  to  be  considered  in  his  favor.  47  Kan.  753.  Xot 
applicable  under  inconsistent  circumstances.     126  X.  C.  932. 

A  special  contract  may  give  the  carrier  an  option  as  between  modes  of 
transportation.  Blitz  v.  Union  S.  S.  Co.,  51  Mich.  558.  Or  a  right  to  jetti- 
son cattle  shipped  on  deck,  should  the  safety  of  the  ship  require  it.  5 
Hughes  (U.  S.),  275.  Or  the  benefit,  in  case  of  loss,  of  any  insurance  taken 
out  by  the  customer.  17  Fed.  (U.  S.)  905;  British  Ins.  Co.  ?'.  Gulf  R., 
63  Tex.  475.  See  129  U.  S.  128,  397.  (But  not  so  that  the  customer  must 
rely  upon  such  insurance  regardless  of  the  carrier's  fault.  166  Peun.  St. 
184.)  Or  express  exemption  before  goods  are  in  deliverable  condition  for 
him  to  receive.  90  Tenn.  306  (cotton  compress).  Or  the  right  to  ship 
"at  convenience;"  or  "  without  liability  for  delay;  "  not  meaning,  how- 
ever, with  wholly  unreasonable  delay.  Branch  v.  Wilmington  R.,  88 
N.  C.  573  ;  Jennings  v.  Grand  Trunk  R.,  127  N.  Y.  438;  Green  v.  Boston 
R.,  128  Mass.  221 ;  7  Col.  43.  For  stipulations  like  these  are  not  deemed 
unreasonable  or  obnoxious  to  the  public  interests,  nor  should  they  be  so 
interpreted.  But  an  absolute  release  by  the  shipper  for  all  prospective 
loss  or  damage  is  void.  40  Fed.  731.  And  so  is  any  stated  exemption 
while  loading  or  unloading,  in  any  such  sense  as  to  excuse  improper  facili- 
ties or  improper  handling.  Norfolk  R.  v.  Harmon,  91  Va.  601;  92  Va. 
495.  And  see  78  Te-g.  372:  ^7  Tex.  322-  61  Conn.  531.  For  negligence 
is  never  excusable  on  the  carrier's  part.  See  91  Tenn.  177  (defective 
car  accepted  by  shipper);  107  Penn.  St.  166;  68  Miss.  351. 


CONTRACT   AFFECTING   CARRIER'S   LIABILITY  217 

respected  whenever  this  is  manifest ;  but  a  contract  of  this 
sort  is  so  out  of  course  and  so  disadvantageous  to  himself,  that, 
unless  some  special  consideration  appear  for  such  extreme 
indulgence  to  a  particular  customer,  a  binding  agreement  to 
this  effect  is  not  inferable  from  the  carrier's  bare  promise  to 
do  more  than  the  law  demands.^ 

369.  We  next  ask  how  a  special  contract  may  be  entered  into 
which  seeks  to  qualify  the  carrier's  common-law  liability.  Were 
it  customary  for  modern  carriers  to  go  strictly  by  public  policy 
in  their  charges,  and  at  the  same  time  to  ask  each  shipper,  as 
a  personal  favor,  to  sign  off  deliberately  in  advance  his  legal 
rights,  special  carriage  contracts  would  be  few,  and  litigation 
under  this  head  quite  infrequent.  But  the  practice  of  this  busy 
century  shows  the  bailor's  real  position  by  no  means  so  ad- 
vantageous in  such  transactions  as  ancient  wisd(mi  designed 
it  should  be.  Ship-owners,  stage-coach  proprietors,  trans- 
porters by  steam,  expresses,  common  carriers  in  general,  more 
especially  those  with  great  capital,  push  unceasingly  for  that 
practical  immunity  which  the  common  law  denied  them  ;  and, 
as  one  important  means  to  this  end,  most  of  them  seek  to 
establish,  wherever  they  can,  a  constructive  assent  on  the  part 
of  customers  to  special  terms  which  they  alone  have  put  for- 
ward ;  and  so  gain,  by  indirection,  concessions  that  by  open 
proposal,  while  affording  free  opportunity  for  assent  or  rejec- 
tion, they  could  not  hope  to  procure.  Mutual  assent,  then,  is 
the  theory,  but  inferential  assent  the  practice.^ 

370.  It  became  common  in  England  in  the  latter  part  of  the 
eighteenth  century  for  inland  carriers  to  post  and  distribute 
notices  which  announced  express  conditions  and  limitations  of 
responsibility  on  their  part ;  so  that  whosoever  might  employ 
the  transportation  service  without  objection  was  chargeable, 
as  the  carrier  could  claim,  with  knowledge  of  these  express 

'  §459;  Fenwick  v.  Schmalz,  L.  R.  3  C.  P.  313;  Railroad  Co.  v. 
Reeves,  10  Wall.  (U.  S.)  176.  See  also  50  Me.  339;  105  Mass.  437;  9 
Wall.  161;  2  Kern.  (N.  Y.)  99. 

As  to  the  stipulation  to  carry  « safely  and  securely,"  etc.,  see  2  Ld. 
Raym.  90t),  911 ;  Shaw  v.  Y'ork  R.,  13  Q.  B.  347.     And  see  47  Iowa,  229. 

^  §  460. 


218  THE   LAW  OF   BAILMENTS 

conditions,  and  a  tacit  consent  to  abide  by  them.  In  Great 
Britain  tlie  practice  of  giving  notice  liad  prevailed  long 
before  the  courts  gave  decision  upon  tJie  validity  of  making 
such  limitations ;  and  by  Lord  Ellenborough's  time,  and  at 
the  opening  of  this  century,  the  general  right  of  the  carrier  to 
tlius  limit  his  risks  became  clearly  conceded  in  Westminster 
Hall.^  But  the  English  courts  did  not  stop  here;  for,  as  we 
have  seen,  they  came  to  granting  the  carrier  the  right  to  pro- 
cure unjust  and  unreasonable  contract  exemptions  ;  ^  and  when 
the  right  of  casting  off  the  public  responsibilities  was  once 
found  to  depend,  in  actual  practice,  not  upon  the  clear  and 
indisputable  permission  of  the  customer  himself,  but  upon  the 
issue  or  publication  by  the  carrier  of  some  card,  circular, 
poster,  or  advertisement  (aside  from  a  bill  of  lading),  to  which 
no  more  than  one's  tacit  assent  was  expected  in  return,  the 
situation  of  the  public  was  seen  to  be  intolerable.^  Hence, 
the  English  Railway  and  Canal  Traffic  Act  of  1854  (17  &  18 
Vict.  c.  81)  required  that  the  conditions  "  just  and  reason- 
able "  should  be  embodied  in  a  special  contract  in  writing, 
signed  by  the  owner  or  sender  of  the  goods.* 

1  §  461;  Nicholson  v.  Willan,  5  East,  507  (1801).  And  see  8  Taunt. 
144;  5  Bing.  217. 

2  AiUe,  361;  §461. 

3  2  E.  &  B.  750;  Peek  r.  North  Staffordshire  R.,  10  H.  L.  473,  494, 
and  earlier  cases  reviewed  therein  by  Blackburn,  J.,  concerning  carriers' 
notices  previous  to  1830. 

*  See  ante,  361 ;  Peek  v.  North  Staffordshire  R.,  10  H.  L.  473  ;  Doolan 
r.  Midland  R.,  2  App.  Cas.  792.  Though  such  common  carriers  had,  to  a 
large  extent,  sought  exemption  by  giving  bills  of  lading,  tickets,  receipts, 
and  the  like,  to  the  sender  or  owner,  or  by  means  of  some  more  general 
notice,  and  they  had  asked  no  writing  or  token  of  assent  in  return,  the 
fairer  method  was  sometimes  employed  of  procuring  the  sender's  signa- 
ture to  a  memorandum  or  ticket  stating  the  terms.  See,  e.  r/.,  Austin  v. 
Manchester  R.,  16  Q.  B.  600;  21  L.  J.  Q.  B.  319.  This  signed  memoran- 
dum had,  of  course,  the  effect  of  a  special  contract.  Walker  v.  York,  &c. 
R.,  2  E.  &  B.  750,  was  an  extreme  case  of  injustice  to  customers  (insisting, 
by  a  notice  which  the  fish  dealers  strongly  protested  against,  that  fish 
woidd  be  carried  only  upon  condition  of  absolute  exemption).  See  further 
§  462  and  English  reports  cited. 

This  doctrine  of  notice  bears  largely  upon  the  rule  of  mutual  assent, 


CONTRACT  AFFECTING  CARRIER'S   LIABILITY  219 

371.  The  better  nerve  of  our  American  tribunals,  in  keep- 
ing the  curb  rein  steady  which  holds  the  carrier  to  his  public 
obhgations,  has  rendered  judicial  laxity  concerning  methods 
of  special  contract  much  less  injurious.  Nor  even  in  this 
latter  respect,  closely  as  many  States  have  approached  the 
English  doctrine  of  notice,  are  mere  public  notices,  as  by  the 
carrier's  general  advertisement  or  posters,  favored  in  this 
country  to  the  extent  of  enabling  the  public  transporter  to 
limit  his  legal  responsibility  by  such  means  alone.  Even  a 
public  notice  brought  directly  to  the  knowledge  of  the  owner 
or  sender  of  the  goods  has,  in  several  cases  before  the  appel- 
late courts  of  different  States,  been  treated  as  ineffectual.  ^ 
And  our  general  rule  is  to  require,  at  all  events,  some  evi- 
dence, aliunde,  of  the  owner's  assent  to  the  qualified  liability 
which  the  carrier  seeks  thereby  to  impose  upon  him.^  But  in 
America,  as  in  England,  saving  legislative  restrictions  on  this 
point,  the  common  carrier  may  qualify  his  baihnent  responsi- 
bility within  such  limits  as  may  be  lawful,  by  any  express 
contract,  oral  or  written.-^  If  the  owner's  or  sender's  assent 
appear  in  writing,  all  the  better ;  yet  this  is  by  no  means  in- 
dispensable to  the  validity  of  that  stipulated  exemption  which 
bears  the  genuine  stamp  of  mutual  assent.* 

■where  bills  of  lading,  receipts,  tickets,  and  other  memoranda  containing 
written  or  printed  qualifications  of  liability  are  habitually  given  by  the 
carrier  to  his  several  customers.  Judge  Story  has  set  forth  at  much 
length  the  English  doctrine  of  notices,  as  expounded  in  the  early  part  of 
the  nineteenth  century.  Story  Bailm.  §§  553-573.  His  lucid  statements 
are  worthy  of  the  student's  careful  perusal,  though,  ere  this,  the  subject 
has  lost  its  prestige. 

1  §  463;  26  Vt.  247;  10  Ohio,  115. 

2  76.  ;  1  Kern.  (N.  Y.)  485  ;  Blossom  lu  Dodd,  43  N.  Y.  264;  Judson 
V.  Western  R.,  6  Allen  (Mass.),  486,  490;  6  Mich.  243;  Davidson  v.  Gra- 
ham, 2  Ohio  St.  131 ;  New  Jersey  Steam  Nav.  Co.  v.  Merchants  Bank,  6 
How.  (U.  S.)  344  ;  Cantling  v.  Hannibal  R.,  54  Mo.  385;  49  X.  H.  20; 
17  R.  I.  441. 

3  6  How.  (U.  S.)  344  ;  6  Mich.  243.  Written  supersedes  oral  con- 
tract. 

*  The  special  contract  should  not  be  with  one  legally  or  physically 
disqualified,  and  unfair  advantage  should  not  be  taken.  Camden  R.  v. 
Baldauf,  16  Peun.  St.  67.     And  see  2  C.  B.  n.  s.  620.     But  a  customer  not 


220  THE   LAW   OF   BAILMENTS 

372.  Mutual  assent  in  bills  of  lading,  way-bills,  and  the 
like,  may  be  here  considered.  The  English  practice  of  giving 
pnblic  notice  of  the  intent  to  transport  under  a  qnalified  liabil- 
ity appears  to  have  originated  with  land  carriers,  who  always 
found  better  opportunities  to  pursue  it  than  carriers  by  water. 
The  lattei'  class  early  adopted  a  more  positive  and  appropriate 
means  of  curtailing  their  public  risks,  by  stating  the  sjDecial 
exceptions  they  meant  to  claim  in  the  bill  of  lading,  a  docu- 
ment universally  recognized  by  commercial  countries  in  ship- 
ments of  personal  property  by  water,  and  given  in  each 
individual  transaction.  This  bill  of  lading,  which  has  usually 
been  made  out  in  triplicate  for  the  convenience  of  all  parties 
concerned,  serves  as  the  written  evidence  of  a  contract  with 
the  particular  customer  for  carrying  his  goods  by  sea  for  a 
certain  compensation  called  freight ;  it  is  signed  by  the  cap- 
tain, master,  or  other  agent  of  the  vessel ;  it  specifies  the 
receipt  of  specified  chattels ;  and,  in  effect,  promises  their 
transportation  on  the  terms  therein  expressed,  follov/ed  by 
their  delivery  at  the  place  appointed  to  the  consignee  or  his 
assigns,  he  or  they  paying  freight  for  the  same.  It  is  assign- 
able by  indorsement,  so  as  to  afford  a  ready  means  of  trans- 
ferring property  and  possessory  title  to  the  goods  represented  ; 
and,  as  its  verbal  tenor  shows,  this  instrument  partakes  of 
two  distinct  characters,  —  that  of  a  written  contract,  and  that 
of  a  written  receipt.  Now,  the  insertion  of  special  conditions 
of  carriage  in  documents  like  these  was  natural  enough, 
from  the  moment  it  became  likely  that  a  sea-carrier's  special 
terms  or  special  acceptance  would  bind  his  customer  by 
indirection  at  all.^  That  silently  receiving  a  bill  of  lading 
for  carriage  by  ocean  or  in  our  inland  waters  imports  an 
assent,  on  the  shipper's  part,  to  be  bound  by  any  and  all 
special  and  -permissible  quaUfications  which  may  prove  to  be 

thus  disqualified  is  generally  bound  by  his  signature  to  a  written  contract. 
77  Mo.  034;  91  Ala.  3-40;  39  S.  C.  55.  In  some  States,  as  in  England, 
railway  carriers  must  make  express  contracts.     68  Ga.  350. 

1  §^464;  The  Delaware,  14  Wall.  (U.  S.)  579,  600;  1  H.  Bl.  357;  15 
Otto  (U.  S.),  7.  And  see  atUe,  355,  where  the  usual  expressions  are 
stated,  beginning  with  the  moderate  "  perils  of  the  seas." 


CONTEACT  AFFECTING  CARRIER'S  LIABILITY  221 

therein  contained,  is  not,  as  a  rule,  to  be  denied.  And  since 
general  notices  have  fallen  into  disrepute,  railwa^-s  and  other 
inland  carriers  are  latterly  drawn  into  the  extensive  use  of 
corresponding  instruments  for  similar  purposes  of  carriage  and 
carriage  exemption.  Conditions  inserted  in  documents  like 
these  are  more  readily  brought  home  to  the  knowledge  of  con- 
signors and  owners  than  those  promulgated  by  general  notice, 
and  hence  obtain  the  judicial  sanction  more  readil}^ ;  while,  on 
the  other  hand,  the  carrier  keeps  the  advantage  he  has  so  much 
craved,  of  securing  the  customer's  assent  by  indirection  or  his 
mere  non-objection,  if  only  the  courts  will  extend  to  inland 
traffic  the  time-honored  favor  accorded  to  bills  of  lading  where 
the  transportation  is  by  water. ^ 

373.  Indirect  mutual  assent  is  thus  the  rule  with  carriers 
in  modern  cases.  This  widely  prevalent  use  of  inland  bills  of 
lading,  receipts  and  tickets,  wiitten  or  printed,  which  the 
carrier  alone  issues,  so  that  the  consignor  need  sign  nothing 
and  say  nothing,  but  find  from  inspection,  if  he  cares  to  read 
the  document,  that  the  otlier  party  intends  to  perform  the 
transportation  upon  other  than  the  common-law  terms,  and 
take  the  onus  of  offering  his  inopportune  objections  at  the 
last  moment,  lays  open  a  field  of  legal  controversy,  originat- 
ing in  misunderstandings  and  an  uncertain  mutuality.  Here 
the  carrier  has  commonly  this  advantage  of  an  altercation 
with  his  customer,  that  he  may  keep  his  lien  alive  upon  the 
goods  in  dispute,  if  they  be  not  utterly  lost  or  destroyed,  refer 
his  customer  to  the  document  of  receipt,  refuse  to  surrender 
on  other  terms,  and  put  the  burden  of  litigation  and  of  disprov- 
ing a  contract  upon  the  party  of  the  two  who  can  less  afford 
to  sue,  and  who  is  kept  out  of  possession.  But  the  main  ques- 
tion which  engrosses  the  courts  in  such  issues  must  be  Avhether, 
under  all  the  circumstances,  the  sender  should  be  taken  to 
have  understood  the  carrier's  notice  that  he  means  to  trans- 
port under  a  specially  qualified  responsibility,  and  to  have 
assented  by  implication  accordingly.  The  decisions  under 
this  head    appear  somewhat  confusing ;   yet   seven  separate 

1  §  464. 


222  THE   LAW   OF   BAILMENTS 

elements  for  consideration  may  help  to  reconcile  them ; 
and  these  we  proceed  to  point  ont.  They  are  briefly  these  : 
(1)  the  character  of  the  document  given  into  the  sender's 
hands ;  (2)  the  carrier's  fair  effort  to  make  his  special  terms 
plain ;  (3)  his  seasonableness  in  announcing  these  special 
terms  ;  {-^)  whether  tlie  special  terms  are  brought  home  to  the 
proper  party  ;  (5)  honesty  and  fair  dealing  on  the  sender's 
part ;  (6)  waiver  or  non-waiver  of  the  terms  specially  an- 
nounced; (7)  authority  from  the  carrier.^ 

374.  (1)  The  character  of  the  document  given  into  the 
sender's  hands.  Bills  of  lading,  for  carriage  transit  by  sea  or 
an  extensive  journey  by  inland  waters,  are  of  such  solemnity, 
both  as  the  means  of  transferring  title,  and  as  the  long-estab- 
lished method  of  evincing  the  true  terms  of  transportation, 
that  one  can  hardly  be  justified  in  receiving  such  an  instru- 
ment without  reading  its  terms .^  In  a  less  degree  the  more 
modern  railway  bills  of  lading  or  way-bills  for  freight  acquire 
a  similar  legal  importance,  especially  for  extensive  distances  ; 
and  tliese  are  sometimes  in  like  manner  pledged  for  advances 
or  transferred  outriglit.^  But  the  mere  receipts  of  express  or 
other  miscellaneous  land  carriers  are  of  little  consequence, 
usually,  other  than  to  evince,  perhaps,  an  acceptance  by  the 
carrier ;  and,  being  mainly  for  the  consignor's  temporary  con- 
venience, and  as  a  voucher  which  need  not  be  presented  at  the 
terminus,  and  cannot  be  negotiated  as  a  document  of  title, 
they  are  seldom  read  or  carefully  preserved.  And  yet,  here 
we  should  add,  be  the  inland  conveyance  by  express  or  as 
railway  freight,  the  importance  of  the  consignment,  and  the 
distance  and  time  of  transit,  has  much  to  do  with  assimilating 
such  documents  to  those  which  symbolize  a  carriage  bj-  sea ; 
nor  can  a  uniform  local  custom  be  disregarded  in  any  case.* 

1  §  465. 

2  §  466;  The  Delaware,  14  Wall.  (U.  S.)  5G2,  579;  66  Vt.  290;  ante, 
372;  L5  Otto  (U.  S.),  7;  3  Allen  (Mass.),  103. 

8  Farmers  Bank  v.  Erie  R.,  72  N.  Y.  188;  Mulligan  v.  Illinois 
Central  R.,  36  Iowa,  181;  Morrison  v.  Phillips  Co.,  44  Wis.  405; 
20  Kan.  519;  78  N.  Y.  167;  Louisville  R.  v.  Brownlee,  14  Bush  (Ky.). 
590;  O'Bryan  v.  Kinney,  74  Mo.  125. 

4  16  WaU.  (U.  S.)  318,  329,  per  Mr.  Justice  Davis;  21  Wis.  554;  Bel- 


CONTRACT   AFFECTING   CARRIER'S  LIABILITY  223 

375.     (2)    "Whether  the  carrier  has  fairly  sought  to  make  plain 

his  special  terms  to  his  customer,  or  rather  to  bind  the  cus- 
tomer while  keeping  those  terms  from  attracting  his  attention. 
Hence  those  devices,  not  uncommonly  employed  with  a  pur- 
pose, but  whose  purpose  is  not  a  material  issue,  which  tend 
usually  to  trick  the  sender  out  of  his  rights,  and  at  all  events 
set  up  equities  against  the  carrier,  —  such,  for  instance,  as 
printing  the  general  objects  of  the  carriage  in  large  letters, 
and  the  special  restrictions  in  small ;  stamping  obscure  words 
on,  obliterating,  or  covering  over,  essential  phrases ;  or  in- 
serting qualifications  out  of  their  natural  place,  and  where 
they  would  not  naturally  attract  attention,  —  are,  by  our 
best   decisions,    strongly  discountenanced   and   disapproved.^ 

ger  V.  Dinsmore,  51  N.  Y.  166  ;  36  Ga.  635  ;  Adams  Express  Co.  v.  Stet- 
taners,  61  111.  18-1;  93  111.  523;  Buckland  v.  Adams  Express  Co.,  97 
Mass.  124.  But  see  Grace  v.  Adams,  100  Mass.  505,  distinguisliing 
former  cases  decided  in  that  State;  21  Wis.  152;  62  N.  Y.  171 ;  63  Mo. 
376;  Hadd  n.  U.  S.  Express  Co.,  52  Vt.'335.  The  tendency  in  many 
States  is  evidently  to  place  express  receipts  containing  conditions  on  the 
same  footing  as  other  inland  bills  of  lading.  But  such  cases  lay  stress 
upon  the  circumstance  that  the  instrument  is  not  given  as  a  mere  receipt ; 
but.  according  to  the  local  usage,  as  an  inland,  or  even  negotiable,  bill  of 
lading.     See  Madan  v.  Sherard,  73  N.  Y.  329. 

There  is,  however,  some  confusion  on  this  point,  so  far  as  presumptions 
of  assent  are  concerned.  For,  in  some  States,  the  rule  is  broadly  stated, 
that  the  shipper's  assent  to  limitations  contained  in  a  railroad  or  express 
bill  of  lading  is  not  necessarily  presumed  from  receiving  it ;  but  the 
question  of  actual  assent  is  for  the  jury  to  determine.  51  111.  88  ;  86  111. 
71 ;  89  111.  43, 152;  90  111.  455;  160  lib  618.  §  466.  Receipts  not  favored 
as  establishing  special  terms.     109  Iowa,  551. 

As  to  tickets,  which  are  hurriedly  bought  by  those  who  hasten  on  board, 
see  43  N.  Y,  264 ;  48  N.  Y.  212;  12  Gray  (Mass.),  388;  32  Penn.  St.  208. 
Thus  is  our  descent  from  a  document  which  naturally  invites  a  bailor's 
scrutiny,  as  to  special  terms,  to  that  which  seems  rather  to  repel  it. 
§  467.  Circumstances,  with  non-objection,  might,  however,  render  one  a 
party  to  the  carrier's  terms,  as  would  undoubtedly  a  direct  assent  to  those 
terms,  by  signature  or  orally.  §  467;  176  Mass.  280  (familiarity  with  the 
printed  express  receipts). 

1  §468;  Brittan  o.  Barnaby,  21  How.  (U.  S.)  527;  Perry  v.  Thompson, 
98  Mass.  249;  Yei-ner  v.  Sweitzer,  32  Penn.  St.  208;  43  N.  Y.  264; 
10  Ohio,  145;  Madan  r.  Sherard,  73  N.  Y.  329. 

Printing  special  conditions,  simply  on  the  back  of   the  way-bill  or 


224  THE   LAW   OF   BAILMENTS 

Fraudulent  intent  on  his  part  is  not  essential  here,  in 
order  that  the  carrier  be  debarred  from  asserting  the  stipu- 
lation ;  but  the  fact  that  his  course  has  put  the  consignor, 
in  the  matter  of  giving  indirect  assent,  at  a  decided  dis- 
advantage.^ 

376.  (3)  Seasonableness  in  the  announcement  of  the  special 
terms.  Under  the  fundamental  rule  of  contracts,  that  mutual 
intent  upon  which  the  carriage  is  actually  undertaken  must 
prevail  as  the  true  bailment  contract,  unless  both  parties  are 
shown  to  have  agreed  to  a  later  change.  And  where  carrier 
and  consignor  are  silent  as  to  terms,  and  neither  custom  nor 
modern  statute  controls  the  case,  the  carriage  must  be  taken 
to  have  been  upon  the  terms  prescribed  by  ancient  j^olicy. 
The  bill  of  lading  or  other  document  which  puts  forth  or 
proposes  special  conditions  should  come,  then,  to  the  sender, 
or  he  must  be  made  otherwise  aware  of  such  conditions,  in 
time  for  him  to  assent  or  object  to  the  terms,  intrust  the  goods 
to  the  carrier  or  withhold  them ;  and  after  a  bailment  is  made 
upon  one  contract,  the  carrier  cannot,  at  his  sole  option,  pre- 
scribe new  terms  of  carriage.^ 

377.  (4)  Bringing  the  special  terms  home  to  the  proper 
party  under  the  consignment.  The  express  or  implied  assent  of 
the  sender  or  owner  in  due  season,  which  is  here  requisite, 
may  doubtless  be  given  through  the  medium  of  agents ;  yet 
the  sender's  agent  for  delivering  goods  to  the  carrier  for  trans- 
other  voucher,  is  held  in  disfavor.  See  16  Wall.  (U.  S.)  318  ;  49  Vt.  255; 
12  Gray  (Mass.),  :3S8.  And  see  English  cases  1  C.  P.  D.  618;  2  C.  P.  D. 
416.     But  cf.  1  Q.  B.  D.  515. 

1  §  468.  See  also  16  Penn.  St.  67  ;  52  Vt.  335  (document  given  to  an 
illiterate  foreigner,  ignorant  of  the  language);  43  N.  Y.  264;  73  N.  Y. 
329  (document  handed  over  at  times  and  in  places  where  it  could  not  be 
read  over  by  the  consignor). 

2  §  469;  72  N.  Y.  70;  47  N.  Y.  712;  Gott  v.  Dinsmore,  111  Mass.  45 
Gaines  v.  Union  Trans.  Co.,  28  Ohio  St.  418;  90  111.  455;  91  111.  268 
74  Mo.  125;  17  Mich.    296;  47  Iowa,  272 ;  40  Kan.  184;  22  Neb.  721 
79  Tex.   33;    109   Iowa,  551.     A  receipt  directing  special  attention  to 
terms  printed  in  bill  of   lading  is   not  seasonable  and  snfRcient  notice 
where  the  bill  of  lading  showing  those  terms  was  given  after  transporta- 
tion began.     Merchawte  Co.  v.  Fui'thmaun,  149  111.  66.- ' 


CONTRACT  AFFECTING    CARRIER'S  LIABILITY  225 

portation   is   not  necessarily  his   agent  for   binding  him  to 
special  modifications  of  the  carriage  contract.^ 

378.  (5)  Whether  honesty  and  fair  dealing  are  manifest  on  the 
sender's  part.  The  person  employing  a  carrier  must  make 
use  of  no  fraud  or  artifice  to  deceive  him.  Yet  the  sender, 
so  long  as  he  practises  no  deception  to  the  carrier's  injury, 
may  keep  silence  over  the  contents  and  value  of  the  package 
he  has  offered  for  transportation ;  leaving  the  carrier  him- 
self to  ask  such  questions  for  prudence'  sake  as  may  not  be 
impertinent.'-^ 

379.  (6)  Whether  or  not  a  -waiver  of  the  expressed  condi- 
tions has  been  made.  Circumstances  which  imply  a  waiver 
b}-  the  carrier  of  express  conditions  announced  in  his  docu- 
ments are  by  no  means  to  be  disregarded ;  and  the  carrier's 
own  inducement  to  non-compliance  may  constitute  a  waiver.^ 

380.  (7}  Whether  the  special  contract  was  duly  made  by 
the  carrier  or  his  proper  agent  may  prove  a  material  issue  where 
the  special  terms  were  burdensome  rather  than  advantage- 
ous to  the  carrier.  We  have  seen  that  a  carrier's  receiving 
agent  cannot,  even  by  bill  of  lading,  bind  him  to  a  fraudu- 
lent and  fictitious  shipment  of  goods.*  So,  too,  in  special 
terms  under  a  shipment  to  the  carrier's  disadvantage  may  the 
question  of  a  due  binding  agency  sometimes  arise. ^ 

381.  The  efifect  of  the  sender's  refusal  to  accept  the  special 
qualification  of  risks  which  the  carrier  proposes,  is  simply 
that  the  carrier  may  demand  extra  rates  for  being  an  insurer 

1  §  470.  See  Fillebrown  v.  Grand  Trunk  R.,  55  Me.  462;  97  Mass.  124; 
5  Mich.  368;  89  111.  152;  28  Ohio  St.  418;  Ziraraer  v.  N.  Y.  Central  R., 
137  N.  Y.  460. 

2  §471;  4  Burr.  2298;  9  Wend.  (N.  Y.)  115;  14  C.  B.  255;  Xitro- 
Glycerine  Case,  15  Wall.  (U.  S.)  524;  Rathbone  v.  X.  Y.  Central  R., 
140  N.  Y.  48;  103  Ind.  121 ;  22  La.  An.  158;  44  Ala.  468.  Cf.  62  X.  Y. 
35;  09  111.  62. 

8  §  472;  Gulf  R.  v.  Trawick.  68  Tex.  314;  87  Ga.  734;  Merrill  v. 
Express  CoT762  N.  H.  514;  87  Ky.  626;  118  Ind.  174;  140  N.  Y.  48; 
158  Mo.  226. 

*  Ante,  312. 

^  See  International  R.  v.  Wentworth,  87  Tex.  311;  1  Mo.  App.  474. 

§  472  a.    ■ ■•^ 

15 


226  THE  LAW  OF  BAILMENTS 

of  the  goods,  and  carrying  on  the  terms  prescribed  by  pubUc 
policy ;  provided,  of  course,  lie  charges  on  the  whole  no  un- 
reasonable compensation  for  his  service.^  Farther  than  this 
the  carrier  cannot  rightfully  force  his  customer  to  his  own 
will.  He  cannot  refuse  to  carry  the  goods  at  all  unless  the 
customer  yields  compliance  to  his  terms,  nor  so  conduct  his 
business  as  to  exclude  the  sender's  option  to  require  the  com- 
mon-law risks ;  since  the  rule  of  the  public  yields  in  sense 
only  to  a  mutual  waiver  by  both  parties  concerned.''^ 

382,  As  to  the  proof  of  a  special  contract,  the  special  stipu- 
lations of  common  carriage  may  be  written,  printed,  or  simply 
oral.  The  true  issue  in  a  case  of  the  present  sort  is,  whether 
a  certain  contract  was  entered  into ;  and  of  this  the  proof 
required  conforms  to  usual  rules  of  evidence.^  Even  usage 
may,  to  some  extent,  be  resorted  to,  in  proof  that  such  a  con- 
tract is  to  be  implied.*  The  presumption  undoubtedly  is,  that 
one  who,  in  the  exercise  of  his  public  vocation,  undertakes  to 
transport  a  thing,  does  so  subject  to  the  common-law  liabili- 
ties ;  and  this  presumption  prevails  until  overcome  by  coun- 
tervailing proof  of  a  special  agreement  as  to  the  terms  of 
carriage.^  Where  the  consignor's  acceptance,  without  objec- 
tion, of  a  bill  of  lading,  or  other  document  reciting  special 
conditions,  does  not,  on  principles  already  discussed,  operate 
by  way  of  estoppel,  or  conclude  the  question,  that  mutual 
assent  which  is  vital  to  the  special  contract  is  a  matter  of 
fact  to  be  proven  from  writings,  or  mutual  words,  acts,  con- 
duct, and  the  attendant  circumstances  of  the  bailment.^     Oral 

1  §  473;  62  N.  Y.  171,  179;  57  Ark.  112;  88  Tenn.  430;  Railroad  Co. 
V.  Lockwood,  17  Wall.  (U.  S.)  357;  153  Penn.  St.  302. 

2  lb. ;  Kansas  Pacific  R.  v.  Reynolds,  17  Kan.  251 ;  48  Kan.  210. 
8  §  474;  5  Mich.  368;  21  Ga.  526;  15  La.  An.  103. 

*  Cooper  V.  Berry,  21  Ga.  526;  5  Gray  (^Nlass.),  594;  Hibler  v. 
McCartney,  31  Ala.  501. 

6  3  Dutch.  (N.  Jo  100;  203  111.  376. 

®  28  Ohio  St.  418;  Boorman  ?'.  American  Express  Co.,  21  Wis.  152, 
158;  89  111.  43 ;  109  Iowa,  551.  But  as  to  what  constitutes  per  se  a  special 
contract  of  carriage,  this  is  usually  a  question  of  law.  26  Vt.  247.  A 
contract  wholly  in  writing  and  signed  by  the  shipper  is  not  needful, 
unless  the  local  statute  requires  it. 


CONTRACT   AFFECTING   CARRIER'S   LIABILITY  227 

negotiations  merge  in  a  subsequent  Avritten  or  printed  contract, 
which  embodies  the  final  understanding  of  tlie  parties  at  the 
time  the  carriage  is  undertaken  upon  a  completed  bailment. 
Such  written  contract  is  not  to  be  orally  disputed.^ 

383.  Of  two  or  more  bills  of  lading  issued  under  the  same 
transaction,  that  which  is  delivered  to  the  sender  must  govern, 
in  case  of  discrepancy  as  to  special  terms ;  not  that  retained 
by  the  carrier.^  The  formal  stipulations  which  are  contained 
in  a  solemn  bill  of  lading  cannot  well  be  disputed  by  other 
less  formal  writings,  as,  for  instance,  the  language  of  a  mere 
account  for  freight  given  afterwards  by  the  carrier  to  the 
shipper  of  goods.^  Should  a  carrier  fraudulently  or  inad- 
vertently issue  two  original  bills  of  lading  for  the  same  ship- 
ment, he  will,  as  late  cases  hold,  render  himself  liable  for  such 
loss  as  innocent  third  parties  for  value  may  have  sustained  in 
consequence.* 

384.  As  to  the  burden  of  proof  under  a  special  contract,  in 
case  of  loss.     Non-delivery  of  the  goods,  or  their  delivery  at 

1  63  Iowa,  611 ;  36  Minn.  39G ;  Fairfax  v.  N.  Y.  Central  R.,  73  N.  Y. 
167.  But  the  original  risks  ai-e  not  to  be  varied,  after  the  goods  are  in 
transit,  except  by  a  clear  mutnal  assent.  Ante,  376.  Nor  can  usage 
change  the  written  contract  expression.     2  Sumn.  (U.  S.)  567. 

^  §  475  ;  The  Thames,  14  Wall.  (U.  S.)  98. 

8  Phillips  V.  Edwards,  3  H.  &  N.  813. 

*  Wichita  Savings  Bank  v.  Atchison  R.,  20  Kan.  519.  And  see  72 
N.  Y.  188;  47  Iowa,  272. 

Since  bills  of  lading  have  a  twofold  character  compounded  of  a  receipt 
and  a  contract,  they  may  usually  be  explained  in  the  former  respect, 
since  such  receipt  affords  only  prima  facie  -evidence  of  the  quantity  and 
condition  ;  but  the  contract  part  is  not  to  be  thus  varied.  See  §  475  and 
cases  cited.  And  see  ih.,  as  to  disputing  such  receipts,  where  bona  fide 
third  parties  have  advanced  on  the  faith  of  the  bill's  recitals.  See  also 
The  Delaware,  14  Wall.  (U.  S.)  .379 ;  105  U.  S.  7;  Pollard  v.  Vinton,  105 
U.  S.  7;  7  Allen  (Mass.),  4r)4;  65  N.  Y.  Ill ;  108  Penn.  St.  529  ;  90  N.  Y. 
430;  20  Kan.  519. 

The  master  of  a  vessel  has  long  had  recognized  authority  to  sign  bills 
of  lading  for  water  carriage.  Railway  and  other  inland  bills,  however, 
are  not  given  commonly  by  persons  of  such  extensive  authority,  but  rather 
by  freight  agents  or  special  clerks.  §§  476, 477.  And  see  ante,  312 ;  9  Fed. 
(U.  S  )  129;  Armour  o.  Michigan  Central  R.,  65  N.  Y.  Ill;  44  Md.  11. 


228  THE   LAW   OF   BAILMENTS 

the  end  of  the  transit  in  an  injured  state,  such  as  imputes  no 
fault  to  the  sender,  puts  the  burden  of  exemption  upon  the 
carrier ;  who,  for  his  immunity  in  the  present  case,  ought,  by 
proof,  to  bring  himself  within  the  terms  of  his  special  engage- 
ment. And  where  the  bill  of  lading  or  receipt  shows  the 
package  to  have  been  in  good  condition  when  shipped  and  tlie 
sender  proves  that  his  own  duty  was  properly  performed, 
the  burden  is  on  the  carrier  to  account  for  an  injury. ^  But 
the  doctrine  is  fairly  established,  that  whenever  the  carrier 
under  a  special  contract  shows,  without  compromising  himself, 
that  the  loss  or  injurj^  for  which  he  is  sought  to  be  made 
answerable  was  from  one  of  the  expressly  excepted  causes  of 
that  contract,  —  as  by  fire,  for  instance,  or  a  peril  of  lake 
navigation,  —  he  repels  at  once  the  presumption  which  the 
failure  to  successfully  perform  the  transit  raised  against  him.^ 
The  party  claiming  damage  may  now  proceed  to  show  such 
culpable  negligence  or  misconduct  on  the  carrier's  part  as 
really  occasioned  the  loss  in  question,  and  ought,  therefore, 
to  leave  him  still  chargeable ;  but  the  burden  of  doing  so 
devolves  upon  this  party,  no  such  remissness  having  been 
established  on  the  carrier's  own  showing,  and  the  fact  of 
sucli  special  stipulation  not  being  controverted.^ 

1  §  478;  Canfield  v.  Baltimore  R.,  93  N.  Y.  532;  28  Fed.  (U.  S.)  336. 
Cf.  ante,  350. 

2  Ohrloff  V.  Briscall,  L.  R.  1  P.  C.  231  ;  12  How.  (U.  S.)  272;  Trans- 
portation Co.  V.  Downer,  11  Wall.  (U.  S.)  129;  40  N.  Y.  271;  49  N.  Y. 
249;  Thomas  iJ.  Ship  Morning  Glory,  13  La.  An.  269;  55  Penn.  St.  53; 
Colton  V.  Cleveland  R.,  07  Penn.  St.  211 ;  Denton  v.  Chicago  R.,  52  Iowa, 
161 ;  Little  Rock  R.  v.  Harper,  44  Ark.  208. 

Special  exemptions  from  "breakage,"  etc.,  in  case  of  brittle  goods, 
make  some  difficulty.  Some  courts  incline  to  favor  the  carrier  in  such 
cases  where  there  is  no  evidence  against  him  except  the  receipt  in  good 
condition  and  delivery  broken.  150  Penn.  St.  170;  101  Mo.  631.  As  to 
burden  in  "  bumping,"  see  44  Minn.  191.  All  such  stipulations  of  exemp- 
tion must  be  sensibly  construed.     61  Conn.  531. 

3  §  478.  But  the  rule  of  a  few  States  is  so  far  hostile  to  these  special 
exemptions  as  to  impose  upon  the  carrier,  in  general,  the  burden  of  show- 
ing affirmatively  that  the  loss  in  question  was  occasioned  without  his 
fault.  26  Ohio  St.  595 ;  United  States  Express  Co.  v.  Backman,  28  Ohio 
St.  144 ;  2  Rich.  (S.  C.)  286 ;  9  Rich.  (S.  C.)  201 ;  28  Ga.  343 ;  Chicago  R. 


CONTRACT   AFFECTING   CARRIER'S   LIABILITY  229 

385.  The  carriage  of  animals,  under  a  liability  qualified  by 
special  contract,  deserves  further  mention.  This  sort  of  trans- 
portation as  freight  is  attended  with  peculiar  risks ;  and 
probably  there  is  no  other  instance  in  which  our  railwa3^s 
have  of  late  years  endeavored  so  strenuously  to  make  their 
customers  insurers  of  their  own  freight.  The  course  not  un- 
frequently  pursued  has  been  to  make  the  customer  sign  an 
agreement  to  attend  to  the  loading,  transporting,  and  unload- 
ing himself,  to  take  all  risks  of  injuries  to  the  creatures,  and 
either  to  go  personally,  or  else  send  with  the  animals  some 
special  agent  to  look  after  their  wants.  And,  as  an  induce- 
ment to  these  conditions,  free  tickets,  known  as  "drovers' 
passes,"  are  commonly  issued,  both  in  England  and  America, 
to  those  who  thus  accompany  their  freight  in  cattle-trains, 
the  company  at  the  same  time  disclaiming  responsibility  as 
passenger  carrier  for  the  life  and  safety  of  such  persons. ^ 
This  attempt  of  the  carrier  to  purchase  immunity  is  found 
reinforced,  in  certain  instances,  by  the  announcement  of  op- 
pressive rules  against  customers  who  refuse  to  capitulate. 
Sometimes,  without  the  shadow  of  a  legal  right,  the  carrier 
refuses  to  take  cattle  aboard  unless  the  sender  will  sign  the 
contract  as  presented  to  him  ;  ^  in  other  cases  he  charges,  as 
insurer  of  the  stock,  at  so  high  a  proportional  rate  that  the 
customer  who  elects  to  abide  by  the  common-law  standard  of 
liability  must  infallibly  be  ruined.^  The  courts  are  thus 
confronted,  at  the  present  stage  of  freight  development,  with 
contracts  purposely  framed  for  excluding  all  responsibilit}^  on 
the  carrier's  part,  even  for  his  personal  negligence  and  mis- 
conduct ;  and  the  difficulty  has  been  to  adjust  the  theory  of 

V.  Moss,  60  Miss.  1003;  Brown  );.  Adams  Express  Co.,  15  W.  Va.  812. 
See  further,  as  to  burden  of  proof  under  a  special  contract,  40  Vt.  326 ; 
12  Gray  (Mass.),  488;  L.  R.  3  C.  P.  14  and  cases  cited;  61  111.  184; 
55  Ala.  387. 

As  to  general  remedies,  see  c.  8. 

1  §  479  ;  ante,  353.  As  to  the  liability  of  a  carrier  for  injury  to  persons 
travelling  on  "  drovers'  passes,"  see  post.  Part  VII.  c.  2. 

2  Kansas  Pacific  R.  v.  Reynolds,  17  Kan.  251. 

8  Railroad  Co.  v.  Lockwood,  17  Wall.  357,  359  (1873) ;  155  Mo.  524. 


230  THE   LAW   OF   BAILMENTS 

ultimate  accountability  for  the  losses  of  the  transit  to  a  con- 
sistent and  uniform  practice.^ 

1  The  force  of  the  rule  continues  recognized  ahnost  universally 
throughout  the  United  States,  that  the  carrier  cannot,  by  special  contract, 
exonerate  himself  from  loss  or  injury  to  animals  arising  out  of  his  own 
negligence  or  that  of  his  servants.  9  Kan.  235;  9  Bush  (Ky),  740; 
69  Iowa,  665;  75  Ala.  596;  17  Wall.  (U.  S.)  357;  Qi  Mo.  440;  42  Ilh 
474;  87  Wis.  485.  And  yet  an  agreement  is  held  valid  by  which  the 
owner  or  shipper  of  cattle  shall  take  the  risk  of  injuries  to  the  animals 
"in  consequence  of  heat,  suffocation,  or  being  crowded.''  98  Mass.  239. 
Cf.  65  Mo.  629;  21  Wis.  80;  GS  Ga.  614;  60  Miss.  217;  68  INIo.  268. 
The  disposition  to  rule  thus  seems  partly  to  have  been  influenced  by  the 
circumstance  that  the  kind  of  car  used  was  known  to  the  sender.  See 
26  Vt.  247;  117  Ga.  832.  And  that  the  sender  or  his  agent  travelled  in 
charge  of  the  creatures.  See  25  N.  Y.  442.  And  that  there  was  special 
consideration  afforded  in  the  reduced  rate,  and  the  drover's  pass.  See 
52  Ala.  606 ;  66  Ga.  485. 

In  New  York,  however,  the  carrier  is  distinctly  permitted  to  divest 
himself  of  liability  for  negligence  under  such  a  contract.  Cragin  v. 
Kew  York  Central  R.,  51  N.  Y.  01  ;  49  N.  Y.  204.  And  the  ground  here 
taken,  as  well  as  in  certain  other  States,  is,  that  the  carriage  of  live-stock 
was  not  within  contemplation  of  ancient  policy,  but  is  a  modern  practice 
subject  to  lighter  risks,     lb.;  Louisville  R.  v.  Hedger,  9  Bush  (Ky.),  645; 

21  Mich.  165.  But  this  theory  appears  to  be  without  foundation  in 
fact.  52  Iowa,  600  ;  ante,  289.  The  New  York  rule  promotes  wrong,  and 
is  pointedly  condemned  by  the  Supreme  Court  of  the  United  States.  17 
Wall.  (U.  S.)  3.57.  And  decisions  in  New  York  show  a  disposition  to 
nullifv  in  practice,  if  not  overturn,  that  pernicious  doctrine.  Mynard  v. 
Syracuse  R.,  71  N.  Y.  180;  86  N.  Y.  275;  89  N.  Y.  370;  93  N.  Y.  532. 
But  see  97  N.  Y.  87. 

Some  of  our  States  permit  the  carrier  of  animals  to  stipulate  against 
all  liability  except  for  "  gross  negligence."  34  Md,  197.  But,  in  general, 
such  carrier  cannot  set  up  the  right  to  use  defective  and  unsafe  cars  for 
the  transportation  under  any  special  contract.     See  Railroad  Co.  v.  Pratt, 

22  Wall.  (U.  S.)  123;  Pratt  r.  Ogdensburg  R.,  102  Mass.  557;  81  111. 
504;  10  Ohio  St.  65;  17  Mich.  57. 

The  carrier  may  stipulate  so  as  not  to  be  liable  beyond  a  fixed  sum 
for  injury  to  or  loss  of  any  single  animal,  provided  this  valuation  be  not 
unreasonable  in  amount.  Squire  v.  New  York  Central  R.,  98  Mass.  239, 
245;  52  Ala.  606;  56  Ala.  368;  91  Ala.  340;  Hart  v.  Pennsylvania  R., 
112  U.  S.  331  ;  mite,  306.  See,  further,  64  Mo.  440 ;  34  Md.  197 ;  91  Ind. 
281  (delay). 

Local  legislation  sometimes  affects  this  kind  of  transportation.  Pout,  388. 
Independently  of  the  statute  of  1854  (ante,  360)  and  prior  to  its  passage, 


CONTRACT   AFFECTIXG   CARRIER'S   LIABILITY  231 

386.  Certain  concise  expressions  acquire  from  mercantile 
usage  in  connection  with  the  carriage  of  freight  a  precision  of 
meaning,  which  the  initial  letters  alone  might  not  unfrequently 
convey.  These  aim  in  some  cases  to  qualify  the  common- 
law  liabilities.^ 

387.  That  rule  of  proximate  and  remote  cause  of  loss  or  injury 
which  has  been  already  considered  in  legal  exemptions  from 
liability  applies  to  special  contract  exemptions  offered  in 
excuse  by  the  carrier.^ 

388.  III.  Effect  of  Legislation.  We  finally  consider  the  carrier's 
bailment  responsibility  as  affected  by  legislation.  Our  modern 
English  and  American  enactments  concerning  freight-carriage 
aim,  in  the  present  respect,  for  the  most  part,  (1)  to  lessen 
the  legal  risks  of  transportation  as  to  certain  carriers  and 
specified  kinds  of  property ;  or  (2)  to  curtail  the  opportunities 
which  otherwise  might  be  afforded  a  carrier  of  ridding  himself, 
upon  the  plea  of  a  special  contract  so  called,  of  those  obliga- 
tions he  properly  owes  the  public.  The  former  object  has 
been  mainly  sought  in  the  English  statutes  of  7  Geo.  II.  c.  15, 

the  carrier  company  was  allowed  to  stipulate  against  injuries  to  live-stock, 
"howsoever  caused";  even  though  the  loss  was  occasioned  by  its  own 
negligence.     7  Ex.  707. 

It  is  reasonable  for  a  railway  carrier  to  stipulate  that  claims  for  dam- 
ages shall  be  made  before  the  horses  are  mingled  with  other  stock.  34 
Kan  347.  Where  at  least  some  time  elapses  after  they  are  thus  mingled. 
47  Kan.  753.  See  ante,  367.  In  a  mixed  custody,  the  primary  duty 
of  looking  after  the  natural  wants  of  the  animals  rests  fairly  upon  the 
drover.     119  Penn.  St.  577;  73  Ga.  722;  11  Lea  (Tenn.),  82. 

^  §  480.  As  to  ''owner's  risk,"  often  denoted  by  the  letters  "  O.  R."  in 
a  bill  of  lading  or  other  document,  see  44  Wis.  405;  104  Mass.  144; 
93  N.  Y.  532.  The  usnal  rule  of  policy  in  this  country  forbids  that  such 
an  expression  should  relieve  the  carrier  of  liability  for  the  negligence  or 
misconduct  of  himself  or  his  servants.  But  cf.  3  Q.  B.  D.  195;  8  App. 
Cas.  703  (I]nglish  doctrine). 

Unless  the  customer  actually  understood,  or  usage  gave  to  the  expres- 
sion a  well-defined  meaning  of  which  he  should  be  cognizant,  he  is  not 
bound  by  them.     103  Ind.  121;  3  Col.  280. 

2  §480  a;  Davis  v.  Central  Vermont  R.,  66  Vt.  290  (loss  by  fire 
expressly  excepted):  47  Ark.  97;  Lang  v.  Penn.  R.,  154  Penn.  St.  342 
(loss  by  mobs  and  rioters).     See  ante,  345. 


232  THE  LAW  OF  BAILMENTS 

and  26  Geo.  III.  c.  159,  and  later  American  acts,  which,  for 
the  better  encouragement  of  commercial  enterprise,  reduce  the 
risks  of  ship-owners.^  Of  legislation  for  the  latter  object  there 
are  various  statutes,  with  especial  reference  to  large  inland 
transportation  as  conducted  at  the  present  day.^ 

1  §§  481,  482;  English  acts  of  George  II.  and  George  III. ;  U.  S.  Sts.  of 
1S51,  c.  44,  etc.  See  3  Wall.  (U.  S.)  150,  as  to  the  act  of  Congress 
which  limited  the  liability  of  ship-owners  after  the  decision  in  6  How. 
(U.  S.)  344,  so  as  to  exempt  in  losses  by  accidental  fire.  Stricter 
requirements  too,  on  the  shipper's  part,  are  now  imposed,  in  specifying 
bullion,  valuables,  etc.,  consigned  for  carriage  by  vessel.  The  relation  of 
ship-owners  in  a  loss  is  modified  from  a  partnership. 

'^  See§§483--486;  a«/t',  360;  English  Carriers'  Acts  of  1830  and  1854,  etc. 

We  may  also  note  here,  that  various  statutes  restrain  the  transporta- 
tion of  explosives  ;  they  also  modify  the  general  character  of  bills  of 
lading  so  as  to  protect  better  a  bonajide  holder  for  value;  or  they  regulate 
specially  the  carriage  of  livestock.  To  such  legislation,  in  its  immediate 
local  application,  the  reader  is  referred. 

As  to  humane  and  other  provisions  of  American  statutes  concerning 
the  carriage  of  animals,  see  §  486;  15  Fed.  (U.  S.)  209;  68  Ga.  644. 

Under  the  English  "Railway  and  Canal  Traffic  Act"  (whose  pro- 
visions have  since  been  extended  to  steam  vessels),  such  carriers  continue 
liable  for  loss  or  injury  done  to  animals  or  goods,  in  the  receiving,  for- 
warding, or  delivering  the  same,  whenever  occasioned  by  the  neglect  or 
default  of  the  company  or  its  servants,  unless  the  condition  specially 
'imposed  by  the  carrier  is  (1)  in  the  opinion  of  the  court  "just  and 
reasonable,"  and  is  also  (2)  embodied  in  some  special  contract  in  writing 
signed  by  the  owner  or  sender  of  the  goods.     §  484  and  cases  cited. 

One  section  of  this  English  act  requires  such  carriers  to  afford  all  reason- 
able facilities  to  the  public  and  to  give  no  undue  preference  or  advantage 
to  any  particular  individual  or  description  of  traffic.  There  are  statutes 
enacteil  in  many  of  the  United  States,  whose  object  is  likewise  to  prevent 
railways  and  other  carriers  from  charging  unequal  or  excessive  rates, 
besides  the  act  of  Congress  concerning  interstate  commerce.  §  485 
and  cases  cited;  124  Mass.  561;  44  Wis.  338;  114  N.  Y.  300;  c.  8, 
post. 

So  strong  is  public  sentiment  in  some  parts  of  the  United  States 
against  allowing  railways  to  qualify  their  liability  by  special  contract  at 
all,  that  the  legislation  or  constitution  of  certain  States  makes  all  such 
contracts  utterly  void,  or  else  guards  the  transaction  by  requiring  the 
sender's  signature.     §  485;  69  Iowa,  485;  62  Mich.  1. 


CHAPTER   VI. 

TERMINATION   OF   THE   COMMON   CARRIER'S   BAILMENT 
RESPONSIBILITY. 

389.  The  common  carrier's  responsibility  for  specific  personal 
property  taken  by  him  ceases  as  SOOll  as  he  has  delivered  it 
over  to  the  designated  party  at  the  end  of  the  transit  in  pur- 
suance of  his  undertaking;  for  here  the  bailment  comes  to  a 
natural  end.  We  are  to  assume  (1)  that  the  goods  or  other 
personal  property  thus  delivered  over  are  delivered  in  good 
condition,  or,  at  all  events,  injured  no  more  than  may  be 
shown  to  consist  with  the  due  performance  of  the  carrier's 
duty  upon  the  principles  already  discussed ;  (2)  that  no  in- 
jury has  been  occasioned  by  inexcusable  delay ;  since  every 
carrier  is  bound  to  perform  the  transit,  and  deliver  the  prop- 
erty over,  within  what,  considering  all  the  circumstances,  is  a 
reasonable  time.^ 

390.  For  delays  irresistible,  occasioned  by  act  of  God  and 
other  excepted  causes,  the  carrier  is,  of  course,  not  liable ;  ^ 
and  usage  or  a  special  contract  again  may  tend  to  relax  as, 
on  the  other  hand,  it  may  increase  his  responsibility;^  and, 
furthermore,  the  rule  is  general,  that,  if  the  carrier  has  used 
due  and  reasonable  diligence  in  the  transportation,  under  all 
the  circumstances,  this  will  sufficiently  discharge  him,  even 
though  delay  were  occasioned  by  some  accident  or  mis- 
fortune not  irresistible,  nor  strictly  referable  to  special  excep- 
tion.*    A  delay  in  putting  the  goods  on  the  transit  may  be 

1  §  487. 

2  4  H.  &  N.  847;  Lipford  v.  Charlotte  R.,  7  Rich.  (S.  C.)  409;  ante,  322. 
8  See  2   Kern.    (N.    Y.)    99;    The  Harriman,  9    Wall.  (U.   S.)  161; 

Knowles  v.   Dabney,  105  Mass.  437.     Ante,  367. 

*  §  488;  Taylor  v.  Great  Northern  R.,  L.  R.  1  C.  P.  385;  14  Wend. 
(N.  Y.)  215;  69  Iowa,  665;  99  Mass.  508;  71  Miss.  741;  Wibert  v.  New 


234  THE  LAW  OF   BAILMENTS 

excused  on  a  like  ground ;  though  a  carrier  should  more 
properly  refuse  to  receive  where  his  usual  facilities  cannot  be 
given.i  On  the  other  hand,  a  reasonable  cause  of  delay  will 
not  justify  the  carrier's  non-performance  or  negligent  per- 
formance of  his  duty;  since  he  ought  to  apply,  in  any  emer- 
gency, reasonably  prudent  and  vigilant  efforts  to  avert  or 
diminish  disaster ;  ^  and  the  question  is  always  pertinent, 
whether  the  loss  or  injury  was  due  proximately  to  his  own 
fault  or  not.  And  for  loss  or  injury  occasioned  those  employ- 
ing his  services  by  his  unreasonable  and  inexcusable  delay  the 
carrier  is  liable  to  them  in  damages.^ 

391.  Moreover,  the  delivery  over  should  be  •within  a  reason- 
able time  after  their  arrival,  so  far  as  in  the  carrier  lies.  Rea- 
sonable time  is  not  for  abstract  computation,  but  is  considered 
with  reference  to  the  circumstances.  In  general,  such  delivery 
should  be  within  a  reasonable  time  after  all  possible  cause  of 
detention  is  removed,  but  on  a  proper  day  and  at  suitable 


York  R.,  2  Kern.  (N.  Y.)  245;  4  Whart.  (Penn.)  204;  18  111.  488;  atite, 
296,  322.  Thus,  it  is  held  that  a  railroad  company  is  not  liable  for  delays 
occasioned  by  the  act  of  another  company  crossing  its  line  by  sanction  of 
law.  Nor  where  the  detention  is  caused  by  an  unusual  influx  of  business 
at  the  receiving  point  or  on  the  route,  the  company  providing  with  reason- 
able diligence  to  meet  the  emergency.  Nor  where  a  mob  of  strikers  or 
rioters  impedes  or  interrupts  the  carriage.     Ante,  296. 

1  See  ante,  296,  322. 

Our  courts  are  disposed  to  deal  gently  with  a  carrier,  whose  delay  is 
trivial  or  is  not  shown  to  have  caused  actual  damage.  If  there  be  special 
reason  requiring  haste,  this  should  have  appeared  evident  —  as  in  case  of 
perishable  goods  —  or  the  consignor  should  have  made  the  carrier  aware 
of  the  fact.  47  Mich.  231;  84  ill.  36;  L.  R.  9  C.  P.  325;  47  N.  Y.  29; 
54  111.  58;  48  N.  H.  455.  And  see  further  80  111.  324,  as  to  the  duty  of 
customer  in  such  cases. 

2  34  Conn.  145;  28  Fed.  R.  (U.  S.)  323;  88  N.  C.  570;  69  Iowa,  665; 
33  Ohio  St.  511. 

8  §  488;  D'Arc  v.  London  R.,  L.  R.  9  C.  P.  325;  13  Allen  (Mass.), 
381;  Branch  v.  AVilmington  R.,  77  N.  C.  347;  65  Mo.  569;  144  N.  Y. 
200 ;  post,  c.  8,  as  to  damages ;  68  Ga.  805.  As  where  the  carrier  need- 
lessly deviates  or  carries  out  of  the  way.  And  see  67  J\le.  317  (lapse  of 
life-insurance  policy).  An  unusual  delay  justifying  the  carrier  ought  to 
be  explained  by  him.     41  Ark.  476 ;  37  La.  An.  468. 


TERMINATION  OF  COMMON  CARRIER'S  RESPONSIBILITY      235 

hours  for  such  business  ;  and  for  undue  delay  induced  by  his 
own  carelessness,  the  carrier  is  liable.^ 

392.  Delivery  over  to  the  right  party  is  also  binding  upon 
the  carrier ;  in  other  words,  to  the  true  consignee  on  whose 
behalf  the  undertaking  was  assumed.  He  cannot  deliver 
goods  to  the  wrong  person,  however,  innocently,  cautiously, 
or  in  the  usual  course  of  business,  without  rendering  himself 
liable  as  such  to  the  true  owner  for  the  disastrous  conse- 
quences thence  ensuing.  The  common  law,  in  fact,  treats 
such  misdelivery  as  conversion,  and  makes  the  carrier  suable 
in  trover.2  Nothing,  in  short,  but  culpable  fault  on  the  part 
of  the  customer  himself  can  excuse  the  carrier's  liability  for 
delivery  to  the  wrong  party.  But  there  may  be  a  delivery  to 
the  true  consignee,  motuall}^  intended,  which  shall  discharge 
the  carrier,  notwithstanding  the  real  consignee  actually  im- 
posed upon  the  consignor  by  assuming  some  fictitious  name, 
or  otherwise ;  though  here  the  carrier  must  have  acted  hon- 
orably by  the  consignor,  as  well  as  with  due  diligence  and 
according  to  the  true  spirit  of  his  undertaking.^     A  delivery 

1  §  489;  Stollard  v.  Great  Western  R.,  2  B.  &  S.  419;  Richardson  v. 
Goddard,  23  How.  (U.  S.)  28;  17  Conn.  138;  14  La.  An.  453;  12  111. 
477. 

The  suitable  days  or  hours  to  be  thus  regarded  have  reference  rather 
to  the  usual  receipt  of  such  consignments  than  common  business  dealings 
with  the  public.  3  Dana  (Ky.),  91;  7  Wis.  1.  Cf.  17  Conn.  138;  1 
Blatchf.  (U.  S.)  173  (stormy  day);  1  Ben.  (U.  S.)  46. 

-  §  490;  4  Bing.  476;  Southern  Express  Co.  i\  Dickson,  94  U.  S.  549; 
Collins  ('.  Burns,  63  N.  Y,  1  ;  Alabama  R.  v.  Kidd,  35  Ala.  209;  Winslow 
V.  Veruiont  R.,  42  Vt.  700;  16  C.  B.  163;  109  Mass.  50;  Houston  R.  v., 
Adams,  49  Tex.  748  i  Libby  v.  Ingalls,  124  Mass.  503;  Indianapolis  R. 
i:  Herndon,  81  111.  143;  Devereux  v.  Barclay,  2  B.  &  Aid.  702;  Shenk  v. 
Phil.  Steam  Propeller  Co.,  60  Penn.  St.  116. 

Delivery  on  a  forged  order  or  through  fraud  of  a  stranger  will  not  dis- 
charge tiie  carrier.  73  111.  221;  71  N.  Y.  353.  Misdelivery  by  the  car- 
rier's own  carelessness  or  fraud  is  all  the  more  culpable.  17  Fla.  783; 
99  Ala.  416. 

3  110  INIass.  26;  M'Kean  i-.  M'lvor,  L.  R.  6  Ex.  36;  135  Mass.  278, 
2S3;  160  111.  215;  25  Ind.  493;  17  Fla.  783;  113  Ga.  1102;  Ky.  (1900), 
55  S.  W.  918;  50  N.  Y.  213;  42  Vt.  700.  The  true  principle  appears  to 
be,  in  the  case  of  an  impostor,  that  the  carrier  must  not,  carelessly  or 


236  THE   LAW   OF   BAILMENTS 

to  the  wrong  person  can  never  be  excused  on  the  ground  that 
the  right  one  is  unknown,  and  that  notice  of  arrival  cannot 
be  given  to  him  ;  and  as  delivery  must  not  be  made  to  a 
stranger,  neither  should  the  carrier  take  a  stranger's  direc- 
tions as  to  any  disposition  of  the  goods. ^ 

393.  Delivery  to  the  owner's  or  consignee's  duly  authorized 
agent  is  good  ;  provided,  however,  the  carrier  is  prepared  to 
prove  such  agency ;  since  the  consignee's  agent  at  the  termi- 
nus for  some  special  purpose  is  not  of  necessity  invested  with 
full  power  to  accept  the  particular  delivery  so  as  to  discharge 
the  bailment.  But  delivery  to  the  owner's  agent  embraces 
delivery  to  a  third  person  on  that  agent's  direction.^ 

394.  Delivery  under  some  document  of  title  should  foUow 
the  tenor  of  tliat  document.  In  pursuance  of  our  modern 
practice  of  making  over  bills  of  lading  for  inland  carriage  as 
well  as  transportation  by  sea,  and  so  passing  title  to  the 
goods  on  transit  or  procuring  advances,  the  carrier  is  bound 
to  regard  such  evidence  of  ownership,  and  treat  the  transferee 
of  the  bill,  and  no  other,  as  presumptive  consignee  of  the 
property  therein  described.^  A  carrier  who,  in  disregard  of 
his  own  bill  of  lading,  delivers  over  the  goods  intrusted  to 
him  without  production  of  the  document  at  all,  runs  the  risk 
of  being  sued  in  trover  by  any  hona  fide  holder  of  the  bill  who 

■wrongfully,  aid  a  swindling  transaction,  but  is  bound,  in  his  customer's 
interest,  to  regard  suspicious  circumstances  brought  to  his  attention.  In 
case  of  the  false  personation  of  a  consignee  the  carrier  is  liable. 

1  The  Thames,  14  Wall.  (U.  S.)  98,  107;  39  Ark.  487;  Houston  K. 
V.  Adams.  49  Tex.  748.  . 

2  3  H.  &  N.  I;  2  Cal.  413;  15  Johns.  (N.  Y.)  39;  American  Ex- 
press Co.  V.  ]\lilk,  73  111.  224  ;  Joslyn  v.  Grand  Trunk  R.,  51  Vt.  92  ; 
§  491. 

The  carrier  need  not  prove  authority  in  the  person  to  whom  the  goods 
were  delivered  by  him,  greater  than  in  any  other  issue  in  a  civil  action. 
Wilcox  V.  Chicago  R.,  24  Minn.  269.     See  42  Neb.  379. 

3  §  492;  Alderman  v.  Eastern  R.,  115  Mass.  233;  14  Wall.  (U.  S.) 
98;  Bank  of  Commerce  v.  Bissell,  72  N.  Y.  615;  51  Vt.  92;  Bass  v. 
Glover,  63  Ga.  745;  Dodge  v.  Meyer,  61  Cal.  405.  As  to  showing  the 
consideration  of  such  a  document,  see  29  Minn.  363.  Usage  may  affect 
this  question.     133  Mass.  154.     So  may  legislation.     102  N.  Y.  120. 


TERMINATION  OF  COMMON  CxVRRIER'S   RESPONSIBILITY      237 

had  meantime  taken  it  for  value.^  And  where  delivery  is 
thus  undertaken  "  to  order,"  a  delivery  regardless  of  assign- 
ment or  indorsement  is  not  good.^ 

395.  Special  directions  of  the  consignor  must  be  duly  re- 
garded. In  order  to  perform  the  duty  of  delivery  aright,  a 
carrier  must  regard  such  knowledge  of  ownership  as  he 
may  have  acquired.^  When  an  owner  ships  goods  to  his 
own  address,  or  his  own  order,  the  carrier  cannot,  upon 
any  pretext,  make  delivery  to  any  unauthorized  stranger.* 
Again,  where  railway  receipts,  the  evidence  of  title,  with 
attached  drafts,  are  furnished  the  carrier,  or  he  receives 
other  plain  instructions  from  the  consignor  that  the  goods 
are  only  to  be  delivered  on  payment  of  the  drafts,  a  differ- 
ent delivery  will  amount  to  conversion  on  his  part.^  And, 
in  general,  special  directions  from  the  consignor  for  estab- 
lishing the  proper  party  to  whom  delivery  should  be  eventu- 
ally made,  must  be  fairly  pursued,  in  accordance  with  the 
carrier's  undertaking.^ 

396.  Delivery  to  a  paramount  owner  follows'  the  usual 
rule.  While  a  bailee  cannot  avail  himself  of  the  title  of  a 
third  person,  even  though  that  person  be  the  true  owner,  in 
order  to  gain  title  for  himself,  nor  in  any  case  where  he  has 

1  St.  Louis  R.  V.  Larned,  103  111.  293;  Peoria  Bank  v.  Northern  R., 
58  N.  H.  203;  Forbes  v.  Boston  R.,  133  Mass.  154.  But  cf.  ante,  383,  as 
to  duplicate  or  triplicate  bills,  and  the  want  of  full  advantage  of  negoti- 
able paper. 

2  81  Ga.  221;  75  Iowa,  573;  119  Penn.  St.  24;  123  U.  S.  727.  De- 
livery even  to  a  person  who  was  to  be  notified  will  not  excuse  loss  by  dis- 
regard of  the  bill  of  lading.  106  N.  Y.  579.  As  to  delivery  under  a  bill 
of  lading  to  which  is  attached  the  consignor's  draft  for  collection  or 
acceptance,  see  63  Fed.  (U.  S.)  391  ;  160  111.  -iOl. 

3  §  493;  Finn  v.  Western  R.,  102  Mass.  283;  9  Penn.  St.  148;  1  H.  & 
C.  521.  And  see  Sweet  v.  Barney,  23  N.  1''.  335;  London  R.  v.  Bartlett, 
7  H.  &  N.  400.  And  see  Southern  Express  Co.  v.  Dickson,  94  U.  S.  549 
(knowledge  that  the  consignor,  and  not  the  consignee  owned)  ;  49  N.  Y. 
188. 

*  81  111.  143;  Bank  of  Commerce  v.  Bissell,  72  N.  Y.  615;  51  Vt.  92. 
6  115  Mass.  230;  Libby  i-.  Ingalls,  124  Mass.   503;  63  Fed.  (U.   S.) 
391  ;  160  111.  401. 

«  See  McEwen  i;.  Jeffersonville  R.,  33  Ind.  368. 


238  THE   LAW   OF  BAILMENTS 

not  yielded  to  a  paramount  title,  he  is  sufficiently  excused 
where  he  has  delivered  the  property  to  the  true  owner  on  his 
demand,  his  own  course  having  been  honorable.  And  hence 
a  common  carrier  may  excuse  himself  by  showing  that  he 
actually  delivered  the  goods  to  the  true  owner,  who  had  a 
right  to  immediate  delivery,  even  though  such  delivery  be  not 
according  to  the  consignor's  directions  nor  the  terms  of  the  bill 
of  lading.^  But,  in  case  of  delivery  other  than  according  to 
the  original  undertaking,  it  devolves  upon  the  carrier  to 
prove  that  he  has  delivered  to  the  real  owner.^ 

397.  "Where  a  reasonable  doubt  arises  as  to  the  person 
entitled  to  delivery,  the  carrier  should  not  be  left  without 
reasonable  opportunity  of  ascertaining  his  duty.^  But  his 
absolute  refusal  to  deliver  goods  to  a  person  entitled  to  re- 
ceive them,  who  tenders  payment  of  freight  and  other  due 
charges,  constitutes  a  conversion ;  and  whether  his  caution 
and  delay  Avere  reasonable  or  unreasonable  depends  upon  the 
facts  of  the  case.* 

398.  The'  address  of  goods  to  the  "  care  of  "  any  one  is  an 
authority  to  the  carrier  to  deliver  them  to  such  a  party,  and 
so  discharge  himself.  But  to  such  a  rule  exceptions  arise,^ 
The  consignor's  direction,  too,  to  notify  a  third  person  of  the 
arrival  of  goods,  is  not  tantamount  to  authorizing  delivery  to 
him.^ 

1  §  494;  The  Idaho,  93  U.  S.  575;  Western  Trans.  Co.  v.  Barber,  56 
N.  Y.  544;  I  Woods  (U.  S.),  131;  45  N.  Y.  387;  44  Minn.  224. 

2  American  Express  Co.  v.  Greenhalgh,  80  111.  68.  Collusion  by  the 
carrier  with  third  parties  is  forbidden,  as  with  other  bailees.  16  Fed. 
(U.  S.)  57. 

8  §  495  ;  Alexander  v.  Southey,  5  B.  &  Aid.  247;  INIcEntee  v.  New 
Jersey  Steamboat  Co.,  45  N.  Y.  34  (qualified  refusal  only). 

*  Richmond  11.  v.  Benson,  86  Ga.  203  ;  Ilett  v.  Boston  &  Maine  R., 
69  N.  II.  139;  Baltimore  R.  v.  Pnniphrey,  59  Md.  390.  Like  other 
bailees,  who  are  perplexed  as  between  conflicting  claimants,  the  carrier 
may  interplead  parties  and  leave  the  courts  to  decide  who  should  have  the 
goods. 

^  §  496;  Russell  i\  Livingston,  16  N.  Y.  515  ("care  of"  the  carrier's 
own  representative)  ;  Fitzsimmons  v.  Southern  Express  Co.,  40  Ga.  330  ; 
46  Ala.  63;  29  Wis.  611. 

«  Bank  of  Commerce  v.  Bissell,  72  N.  Y.  615. 


TERMINATION  OF  COMMON  CARRIER'S  RESPONSIBILITY      239 

398  a.  Where  misdelivery  occurs  through  the  consignor's  care- 
lessness in  misdirecting  the  goods,  or  in  directing  them  imper- 
fectly, or  where,  through  some  delay  in  delivery,  attributable 
to  the  owner's  act,  a  loss  is  suffered,  it  is  not  the  carrier 
who  should  suffer  the  consequences. ^  But  errors  of  direction 
on  the  sender's  part  do  not  justify  a  misdelivery  through  the 
carrier's  own  fault  or  upon  his  own  conjecture  of  what  the 
consignor  had  intended.^  Misdirection  by  a  sender  is  more 
likely  to  justify  the  carrier  in  delay  with  its  attendant  con- 
sequences than  in  an  erroneous  delivery  over  to  any  one  ;  but 
in  course  of  rectifying  reasonably  the  sender's  blunders  the 
carrier's  responsibility  may  be  reduced  to  the  usual  bailment 
standard.^ 

398  b.  Failure  to  deliver  because  of  legal  process  is  some- 
times discussed.  An  honest  carrier  should  not  suffer,  where 
the  law  defeats  his  performance  by  taking  paramount  custody 
of  the  goods,  regardless  of  his  wishes,  even  though  others  set 
the  machinery  in  motion,  without,  as  it  may  quite  tardily 
prove,  a  good  cause.  It  appears  that  the  actual  detention  of 
his  goods  by  legal  process  may,  under  reasonable  circum- 
stances, be  a  justifiable  defence  on  the  carrier's  behalf  when 
sued  in  trover  as  for  their  conversion.^ 

398  c.  Stoppage  in  transitu  by  the  consignor  may  some- 
times prevent  and  intercept  delivery  by  the  carrier.  Such  a 
right  on  the  consignor's  part  may  not  always  avail  against  a 
bona  fide  purchaser  or  pledgee  of  the  goods  under  bills  of 
lading,  but  it  holds  strongly  as  between  the  unpaid  consignor 


1  §  497  ;  12  Ileisk.  (Tenn.)  161 ;  Stimson  v.  Jackson,  58  N.  H.  138. 
See  c.  4  as  to  excuse  of  "  act  of  customer." 

2  See  McCulloch  v.  McDonald,  91  Ind.  240;  115  111.  407;  Wernwag  v. 
Philadelphia  R.,  117  Penn.  St.  46. 

8  89  Wis.  598.     The  carrier  must  regard  all  his  directions  as  to  de- 
livery and  not  particular  marks  or  descriptions  alone.     124  Mass.  503 ; 

100  N.  Y.  491.     For  fraud  or  carelessness  after  the  carrier's  due  delivery, 
he  is  not  chargeable.     51  Iowa,  460. 

*  §  .498.    See  c.  4  as  to  excuse  of  "  act  of  public  authority."     See  117 
Mass.  591;  8  S.  C.  118;  134  Mass.  288;  Stiles  i;.  Davis,  1  Black  (U.  S.), 

101  ;  36  N.  Y.  403;  51  Ind.  181. 


240  THE    LAW   OF   BAILMENTS 

and  his  insolvent  consignee.^  It  is  for  the  owner,  not  the 
carrier,  to  take  active  steps  in  stopping  goods  in  transitu  ;  but 
the  carrier  is  bound  to  regard  such  steps.^ 

399.  The  carrier's  duty  as  to  property  unclaimed  or  refused 
should  be  considered.  Where,  after  due  inquiry,  the  true 
consignee  cannot  be  found,  or  is  ascertained  to  be  dead  or 
absent,  the  carrier  should  keep  the  goods  until  they  are 
claimed,  or  store  them  prudently  for  and  on  account  of  the 
owner.^  And  if  the  consignee  refuses  to  receive  the  goods  on 
tender  and  pay  freight,  the  carrier  has  likewise  the  right  to 
store  them  on  the  owner's  behalf,  or  retain  a  further  tempo- 
rary custody  as  bailee,*  By  acting  thus,  the  carrier  divests 
himself  of  his  extraordinary  responsibility,  and  becomes  for 
his  custody,  like  any  warehouseman,  liable  only  for  ordinary 
care  and  diligence,^  or  even  for  less,  if  the  circumstances 
warrant  regarding  him  as  a  merely  gratuitous  bailee.^  Even 
thus,  however,  he  cannot  deliver  to  a  mere  stranger,  or  the 
wrong  party ;  though  for  losses  by  theft,  fire,  and  the  like,  he 
should  doubtless  be  held  far  less  rigidly  accountable.'''     Nor 

1  §  499;  Worsdell,  re,  6  Ch.  D.  783;  Newhall «;.  Central  Pacific  R.,  51 
Cal.  3ir>;  45  Me.  172 ;  79  Mo.  App.  7G  ;  170  N.  Y.  148.  See  generally,  as 
to  the  right  of  stoppage  in  transitu,  2  SchouL  Pers.  Prop.  §  558. 

2  French  i'.  Star  Transp.  Co.,  134  Mass.  288. 

3  §  600;  The  Thames,  14  Wall.  (U.  S.)  98;  1  Denio  (N.  Y.),  45; 
AVitbeck  r.   Holland,  45  N.  Y.  13. 

4  Great  Northern  R.  v.  Swaffield,  L.  R.  9  Ex.  132  ;  L.  R.  5  Ex.  51  ;  24 
Fed.  (U.  S.)  815.  The  carrier  need  not  invariably  give  the  consignor 
notice  of  such  non-acceptance.  1  Denio  (N.  Y.),  45;  6  Coldw.  (Tenn.) 
356  ;  American  Express  Co.  v.  Greenhalgh,  80  111.  68.  See  27  Kan.  238. 
Though  this  seems  his  natural  and  prudent  course.  96  Ga.  27.  Nor  is 
it  safe  for  a  carrier  to  assume  that  because  the  consignee  cannot  be  found, 
the  consignor  or  his  agent  should  receive  the  goods.  71  Mo.  203.  But 
the  carrier  should  be  cautious  not  to  misdeliver  upon  the  consignee's  re- 
fusal to  receive,  in  disregard  of  the  consignor,  or  true  owner.  83  N.  C. 
158;  56  Mich.  522  ;  nvte,  392. 

^  §  600.  See  peculiar  circumstances  in  147  111.  550 ;  8  Pac.  56  (refusal 
of  owner  to  receive,  who  billed  to  himself). 

6  6  Coldw.  (Tenn.)  356  ;  7  Wis.  1. 

">  See  100  Ma.ss.  405;  Smith  v.  Nashua  R.,  7  Fost.  (N.  H.)  86;  109 
Mass.  151;  35  Ala.  209;  81  111.  143. 


TERMINATION   OF   COMMON   CARRIER'S  RESPONSIBILITY      241 

can  the  carrier,  under  the  strict  rule  of  the  common  law, 
make  sale  of  such  goods  for  his  charges,  unless,  possibly, 
where  they  must  otherwise  perish  on  his  hands  and  become 
worthless.^ 

400.  In  a  delivery  to  joint  parties,  one  of  those  parties  may 
show  the  carrier  his  sole  right  to  the  goods,  like  any  other 
paramount  owner.^  As  a  rule,  however,  the  carrier's  duty  is 
to  deUver  according  to  his  consignor  s  directions ;  and  where 
the  package  is  directed  to  two  or  more  persons  jointly,  he 
should  deliver  to  both,  or  to  either  of  them  for  both.^ 

401.  In  short,  a  delivery  should  be  complete  ;  and  that  sur- 
render of  possession  which  constitutes  a  complete  discharge 
of  the  carrier's  trust  must  be  attended  with  no  circumstance, 
on  his  part,  such  as  would  impair  the  title  of  the  consignee, 
or  affect  the  latter's  peaceful  enjoyment  of  the  prope^t3^* 

402.  The  carrier,  with  respect  to  unloading,  has  duties  which, 
though  varying  with  time  and  circumstance,  regard  always 
the  natural  wants  and  inherent  qualities  of  the  thing  itself.^ 
Reasonable  facilities  for  unloading  as  well  as  loading  should 
in  general  be  provided.^  As  to  the  permitted  period  for 
unloading  a  vehicle,  the  law  implies,  in  the  absence  of  special 
contract,  that  this  shall  be  within  a  reasonable  time  after  its 

1  Rankin  v.  Memphis,  &c.  Packet  Co.,  9  Heisk.  (Tenn.)  564. 

As  to  storing  in  such  casea,  see  Sherman  v.  Hudson  River  R.,  64  N.  Y. 
254;  11  Allen  (Mass.),  308;  13  Allen,  351;  Bickford  v.  Metropolitan 
Steamship  Co.,  109  Mass.  151.  If  the  consignee  of  a  horse  fails  to  call 
for  it  within  a  reasonable  time  after  its  arrival,  the  carrier  may  put  the 
animal  out  to  a  livery-stable  keeper  at  the  owner's  charge.  L.  R.  9  Ex. 
132.  Local  statutes  permit  certain  earners  to  store  and  sell  for  charges, 
or  to  sell  perishable  goods. 

2  Wells  V.  American  Express  Co.,  55  Wis.  23;  s.  c.  44  Wis.  342;  4 
C.  B.  N.  s.  616;  §  501 ;  ante,  396. 

8  lb. 

<  §  502;  Rowland  i'.  Green  way,  22  How.  (U.  S.)  491  (carrier's  final 
carelessness). 

5  §  503.  A  modern  ferry  should  provide  suitable  drops  and  means  of 
ingress  and  egress.  12  C.  B.  742 ;  7  Cush.  (Mass.)  155.  And  as  to 
animals,  see  68  Mo.  268. 

«  87  Ky.  626 ;  Covington  Co.  v.  Keith,  139  U.  S.  128. 

16 


242  THE   LAW   OF   BAILMENTS 

anival.i  Even  though  the  carrier  should  specially  stipulate 
exemption  from  risks  of  unloading  so  far  as  the  law  permits, 
his  duty  to  unload  is  j5resumed  to  continue.^  But  the  bail- 
ment might  be  one  of  delivering  a  loaded  vehicle,  like  a 
receptacle  with  its  contents,  for  the  consignee  to  empty ;  and 
in  such  a  case  the  delivery  should  be  sufficiently  complete  to 
reasonably  admit  of  such  unloading.^    . 

403.  As  to  methods  of  unloading,  if  a  common  carrier,  in 
pursuance  of  the  duty  of  making  delivery,  uses  the  tackle, 
machineiy,  lighters,  or  cars  of  a  third  person,  and  damage 
ensues,  by  the  breaking  of  the  tackle  or  the  like,  the  thing  is 
his  "pro  hac  vice,  so  as  to  make  him  responsible  therefor  to  his 
own  customer,  as  he  would  have  been  for  his  own  in  delivering. 
But  if  the  consignee,  or  his  agent  or  other  bailee,  uses  such 
tackle,  machinery,  or  other  convenience  for  himself,  after  the 
carrier's  duty  is  performed,  and  the  goods  are  received  into 
his  own  custody  and  control,  the  carrier  is  not  chargeable  for 
the  defects  of  the  thing.* 

404.  The  consignee  may  intercept  his  goods  on  the  transit 
with  the  consent  of  the  carrier,  and  assume  the  risks  accoixl- 
ingly ;  but  not  necessarily  to  the  prejudice  of  a  consignor  or 
true  owner  of  the  goods,  nor  so  as  to  deprive  the  carrier  of 
his  just  reward.^ 

405.  Notice  or  opportunity,  -without  actual  delivery  applies 
in  certain  important  modes  of  conveyance,  so  that  the  carrier, 
on  reaching  the  end  of  his  transit,  becomes  bound,  not  to  seek 
out  the  consignee,  in  order  to  make  personal  delivery,  but 
only  to  give  due  notice  or  opportunity,  that  the  consignee  may 
come  and  take  his  goods  from  the  carrier's  premises.  "Carriers 
by  ships  and  boats,"  it  has  been  said,  "  must  stop  at  the  wharf ; 

1  14  Blatchf.  (U.  S.)  522. 

'^  Benson  v.  Gray,  15i  Mass.  39L 

3  See  Connecting  R.  v.  Wabash  R.,  123  111.  594;  Independence  Co. 
V.  Burlington  R.,  72  Iowa,  535. 

4  §  504;  14  Wend.  (N.  Y.)  225;  4  Esp.  402;  11  Met.  (Mass.)  509; 
Loveland  v.  Burke,  120  Mass.  139  ;  Blakemore  v.  Bristol  R.,  8  E.  &  B. 
1035.     Ante,  31L     See  also  50  N.  ¥.154. 

6  §  505;  Lewis  v.  Western  R.,  11  Met.  (Mass.)  509,  515. 


TEKMINATION  OF  COMMON   CARRIER'S   RESPONSIBILITY      243 

railroad  cars  must  remain  on  the  track.  In  these  cases,  notice 
should  be  given  to  the  consignee  of  the  arrival  and  place  of 
deposit,  which  comes  in  lieu  of  personal  delivery."  ^  At  the 
same  time  it  has  generally  been  conceded  that  common  carriers 
are  prima  facie  under  obligation  to  make  personal  delivery  to 
the  consignee.^  Usage  and  special  contract  shape  the  duty 
very  considerably  in  modern  times,  as  will  presently  be  shown. 
Thus  among  inland  carriers  a  railway  commonly  makes  no 
personal  delivery,  while  with  an  express  or  teamster  it  is  the 
reverse.  But  that  usage  or  contract  ought  to  be  clearly  es- 
tablished, under  which  a  carrier  can  assume  to  clear  himself 
by  simply  leaving  the  goods  at  his  own  place  of  deposit,  to 
be  called  for,  without  at  least  giving  the  consignee  notice  of 
their  arrival.^ 

406.  The  undertaking  of  C.  O.  D.  (i.  e.,  to  collect  on  delivery) 
is  now  a  familiar  one.  Carriers  at  the  present  day  frequently 
undertake  to  collect  the  consignor's  demand  upon  the  con- 
signee simultaneously  with  making  delivery  of  the  goods 
to  the  latter  party,  and  to  remit  the  same  to  the  former ;  and 
the  letters  "  C.  O.  D."  placed  upon  the  package  are  in  some 
States  held  to  have  acquired  a  mercantile  seiise  sufficiently 
importing  such  a  direction  from  the  consignor,  who,  however, 
ought  to  furnish  the  carrier  with  receipted  bill  or  other 
memorandum  of  the  amount  to  be  collected,  or  place  such 
direction  plainly  upon  the  package.*  Tliis  practice  doubles 
or  enlarges  a  carrier's  duty  as  bailee.     Carriers  undertaking 

1  Gibson  v.  Culver,  17  Wend.  (N.  Y.)  305,  311;  §  506. 

2  §  506;  5  T.  R.  389;  Fisk  v.  Newton,  1  Denio  (N.  Y.),  45  ;  The 
Thames,  U  Wall.  (U.  S.)  98. 

8  17  Wend.  (N.  Y.)  305;  16  Vt.  52;   IS  Vt.  131.  See  108-410,  post. 

Wheie  a  notice  is  requisite  from  such  carriers,  a  public  notice  is  ruled 
insufficient.  14  Ga.  277;  3  La.  224;  110  Cal.  348.  Notice  should  be 
directed  and  sent  with  reasonable  diligence.  73  III.  506.  But  cf.  399,  atUe 
(where  one  cannot  be  found)  ;  1  Denio  (N.  Y.),  45;  14  Wall.  (U.  S.) 
98,  107. 

*  §  507;  79  111.  430;  American  Express  Co.'??.  Greenhalgli,  SO  111.  68; 
United  States  Express  Co.  v.  Keefer,  59  Ind.  263  ;  Hutchings  t\  Ladd, 
16  Mich.  493  ;  Collender  r.  Dinsniore,  55  N.  Y.  200.  Parol  explanation 
cannot  contradict  or  vary  the  express  language  of  full  written  directions. 


244  THE   LAW  OF   BAILMENTS 

to  collect  on  delivery  are  bound  either  to  collect  and  remit  the 
cash,  or  else  return  the  goods  as  for  the  consignee's  default ; 
but  express  companies,  upon  whom  this  duty  commonly  de- 
volves, sometimes  advance  to  the  sender  the  amount  of  his 
bill  to  save  the  trouble  of  remitting  afterwards  the  amount 
collected.^  Nor  does  the  undertaking  to  collect  on  delivery 
necessarily  keep  the  bailee  strictly  liable  as  common  carrier, 
while  the  consignee  delays  payment  upon  a  demand  and 
tender  of  the  goods,  and  the  property  continues  in  the  carrier's 
custody,  after  a  reasonable  time  or  notice  to  the  consignor.^ 
In  numerous  instances,  the  carrier  who  takes  a  parcel  with 
directions  to  collect  on  delivery  is  justified  in  giving  the 
consignee  opportunity  to  inspect  the  package  before  paying, 
in  order  to  ascertain  whether  the  bill  sent  for  such  goods  is 
a  correct  one.^ 

407.  Ratification  or  -waiver  by  the  customer  is  applicable. 
The  customer  may  by  his  acts  and  conduct,  as  well  as  by 
formal  writing,  ratify  the  carrier's  imperfect  performance  or 
waive  a  complete  delivery  by  the  latter.'* 

408.  As  a  practical  issue,  we  shall  now  proceed  to  show, 
there  is  considerable  uncertainty  in  determining  the  exact 
point  at  which  our  modern  common  carrier's  liabihty  termi- 
nates in  certain  cases.  For  (1)  a  bailment  duty  may  continue 
after,  as  well  as  before,  one  becomes  a  common  carrier  of  cer- 

1  lb.  But  cf.  76  N.  Y.  376;  Wells  v.  Am.  Express  Co.,  44  Wis.  342 
(goods  sent  by  one  carrier,  with  collection  of  bill  by  another,  is  not  a 
"C.  O.  D"). 

2  Weed  V.  Barney,  45  N.  Y.  344;  Hasse  v.  Express  Co.,  94  Mich.  133 
and  cases  cited.  Special  contract  may  reduce  liability  to  such  a  stand- 
ard.    60  Ark.  100. 

3  Lyons  v.  Hill,  46  N.  II.  49.  And  see  Libby  v.  Ingalls,  124  Mass. 
503,  as  to  the  practice  of  sending  a  railway  receipt  with  draft  attached, 
to  indicate  that  delivery  is  only  to  be  made  on  payment  of  the  draft. 
See  also  ante,  395.  The  "  C.  O.  D."  carrier  who  knows  that  the  goods 
were  sent  in  a  damaged  condition  should  tell  the  consignee.  182  Mass. 
328. 

4  §  508;  Rathbun  v.  Steamboat  Co.,  76  N.  Y.  376  ("  C  O.  D." 
case)  ;  Converse  v.  Boston  &  Maine  R.,  58  N.  H.  521 ;  Dobbin  v.  Michigan 
R.,  56  Mich.  522. 


TERMINATION  OF  COMMON  CARRIER'S   RESPONSIBILITY      245 

tain  goods  ;  (2)  delivery  over   is   not   a  personal  one,  with 
certain   kinds    of  carriers, ^ 

409.  One  may  be  a  carrier  for  transit  and  a  simple  bailee  after 
arrival.  This  is  a  peculiarity  not  often  noticeable  in  other 
bailments,  but  here  constantly  to  be  borne  in  mind  ;  so  that  if, 
for  instance,  goods  which  had  safely  reached  the  journey's  end 
were  accidentally  burnt  up,  or  plundered  by  a  mob,  before  that 
final  delivery  over  which  legally  terminates  a  bailment,  a 
court  would  often  be  perplexed  to  say  whether  the  carrier 
were  liable  as  such  for  the  loss  ;  or,  in  other  words,  whether 
his  standard  of  responsibility  should  be  deemed  exceptional 
or  ordinary.  To  determine  such  a  question,  it  is  material  to 
consider  whether  the  common  carrier  is  legally  bound  as  such 
to  make  delivery  over,  or  the  consignee  must  come  and  fetch 
them ;  and,  in  the  latter  case,  whether  notice  must  be  given 
and  sufficient  time  allowed  to  elapse  after  arrival  of  the  goods 
to  enable  such  a  party  faiily  to  perform  his  duty.  In  both 
respects  our  law  is  far  from  being  exact  or  uniformly  applied, 
and  local  usage  sways  the  English  and  American  courts 
considerably.  Even  wliere  the  carrier  was  bound  naturally  to 
make  delivery,  he  often  becomes,  by  reason  of  the  consignee's 
refusal  to  receive  and  pay,  or  where  the  consignee  is  dead  or 
cannot  be  found,  a  bailee  of  the  ordinary  sort,  after  fulfilling 
his  carrier  duty.^ 

410.  Personal  delivery  is  not  expected,  in  the  usual  case  of 
carriers  by  vessel  or  railway.  Where  goods  are  brought  by 
water,  the  rule  long  sanctioned  in  Great  Britain  has  been  that 
delivery  on  the  usual  wharf  will  discharge  the  carrier ;  and 
such,  too,  is  the  American  rule.^  This  applies  with  especial 
force  to  transportation  between  foreign  ports,  which  for  cen- 
turies has  involved  the  use  of  bills  of  lading ;  and  a  bill  of 
lading  is  quite  commonly  specific  on  the  point  involved, 
whether  in  creation  or  confirmation  of  some  commercial  usage 
as  to  the  method  of  terminating  the  vessel's  liability.     This 

1  §  509. 

-  Ante,  399,  406.     And  cf.  ante,  309. 

3  5  T.  R.  389;  1  Rawle  (Penn.),  203;  4  Pick.  (Mass.)  371;  3  Comst. 
(N.  Y.)  322 ;  23  How.  (U.  S.)  28. 


246  THE   LAW  OF  BAILMENTS 

usage  at  the  present  day  generally  requires  the  consignee  to 
take  off  his  merchandise  in  lighters  from  the  vessel's  side  on 
its  arrival  in  port ;  otherwise  the  carrier  shall  land  the  goods 
on  the  wharf,  or  finally  shall  warehouse  them  if  they  are  not 
called  for,  and  advance,  payment  of  governmeut  duties,  at  the 
cost  of  those  entitled  to  the  pi'opert}^,  especially  if  the  con- 
signee unreasonably  delays  doing  so.^  In  landing  on  the 
wharf  or  storing  goods,  the  carrier  should  have  delicate,  per- 
ishable, and  valuable  merchandise  properly  guarded  against 
exposure  to  the  weather  or  depredation ;  and  justice  requires 
that,  before  or  at  the  time  of  landing,  due  and  reasonable 
notice  be  given  the  consignee  that  tlie  goods  have  arrived  and 
are  ready  for  delivery,  in  order  that  the  latter  may  have  fair 
opportunity  to  protect  and  remove  them,  and  save  risks  and 
special  warehouse  charges.^  The  carrier  should  not  disregard 
his  own  reasonable  precautions  as  warehouseman.^  The  same 
general  usage  (except  as  to  paying  government  duties),  to- 
gether with  the  issue  of  bills  of  lading,  applies  commonly  to 
carriage  between  domestic  ports  and  inland  transportation  by 
water ;  though  local  exceptions  may  prevail,^     And  in  gen- 

1  §  511;    L.  R.  9  C.  P.  355;  Wilson  v.  London  Steam  Nav.  Co.,  L.  R. 

1  C.  r.  01  ;  46  N.  Y.  578;  5  Wall.  (U.  S.)  481;  The  Thames,  11  Wall. 
98  ;  52  N.  Y.  40 ;  Collins  v.  Bums,  63  X.  Y.  1  ;  The  Tybee,  1  Woods 
(U.  S.),  358. 

2  The  Eddy,  5  Wall.  (U.  S.)  481  ;  38  Conn.  143;  Morgan  v.  Dibble, 
29  Tex.  107  ;  Richardson  r.  Goddard,  2:5  How.  (U.  S.)  28;  1  Cliff.  (U.  S.) 
383,  396.  Delivery  to  a  drayman  not  authoiized  by  the  consignee,  neither 
discharges  the  carrier  nor  dispenses  wi'h  notice.     15  Johns.  (N.  Y^.)  39  ; 

2  Head  (Tenn.),  488.  As  to  newspaper  publication  by  way  of  notice, 
see  6  Ben.  (U.  S  )  517.  To  land  and  store  the  goods  without  giving 
notice  or  an  opportunity  to  inspect  does  not  relieve  the  carrier.  Chase 
Dec.  (U.  S.)  125.  But  a  custom  to  deliver  to  a  warehou.seman  who 
notifies  is  good.  80  Mich.  90.  And  usage  or  special  provision  of  the 
bill  of  lading  may  reduce  the  requirement  of  notice ;  thus  posting  on  a 
bulletin  at  the  custom  house  has  sufficed.  Constable  v.  Steamship  Co., 
154  U.  S.  51. 

8  As  in  requiring  a  receipt  before  delivery.  Tarbell  v.  Shipping  Co., 
110  N.  Y.  170. 

*  15  111.  561  ;  Union  Steamboat  Co.  v.  Knai)p,  73  111.  506;  McAndrew 
V.  Whitlock,  52  N.  Y.  40  ;   3  Dana  (Ky.),  91.     See,  as  to  exceptional 


TERMINATION  OF  COMMON  CARRIERS    RESPONSIBILITY      247 

eral,  after  reasonable  opportunitj  for  the  consignee  to  take 
his  goods,  tlie  strict  carrier  liabilit}^  is  at  an  end.^ 

411.  As  to  land  carriers  it  is  now  generally  conceded  that 
railways,  like  water  carriers,  are  exempt  from  the  duty  of 
making  personal  delivery.  Yet  the  responsibility  of  this 
compreliensive  class  of  inland  carriers  is,  by  tlie  more  con- 
servative authorities,  held  to  continue  after  the  goods  have 
reached  their  destination,  and  until  the  consignee  has  had 
reasonable  time  to  call  for  and  take  them,^  which  would  seem 
naturally  to  require  the  carrier  to  give  notice  of  their  arrival.^ 
In  Massachusetts,  however,  and  some  other  important  States, 
the  rule  is  that  the  usual  conduct  of  railway  business  does  not 
require  notice  to  be  given  to  the  consignee,  but  that  imme- 
diate and  safe  storage  ni  a  freight  depot  on  arrival  answers  as 
the  proper  substitute ;  *  and  this,  as  it  is  held,  even  though, 
before  a  loss  occurs,  no  reasonable  opportunity^  is  given  a  con- 
signee to  take  his  goods  away.°  Even  in  such  extreme  in- 
stances, however,   the  legal  liability  of  insurer  is  taken  to 

rules  for  inland  transportation,  6  W.  &  S.  (Penn.)62;  5  Wis.  454.  If  the 
consignee  presents  himself  seasonably  to  receive  his  goods  conformably 
to  contract,  the  carrier  ought  not  to  put  him  to  the  expense  of  storage. 
Graves  v.  Hartford  Steamboat  Co.,  38  Conn.  143. 

As  to  what  is  a  usual  or  suitable  wharf,  as  the  place  of  discharging  a 
vessel,  there  are  numerous  decisions  turning  largely  upon  local  usage. 
See  §  511 ;  3  Fed.  (U.  S  )  344  ;  1  Low.  (U.  S.)  114,  464. 

^  As  to  the  presumptive  duty  of  making  personal  delivery,  in  other 
kinds  of  carriage  by  land,  or  at  least  of  giving  due  notice  and  opportunity 
to  the  consignee,  see  §  612;   Story  Bailm,  §  543. 

2  §  513;  35  Ala.  209;  46  Ala.  67;  Moses  v.  Boston  &  Maine  R.,  32 
•N.  H.  523;  Winslow  v.  Vermont.  &c.  R.,  42  Vt.  700;  Parker  v.  Milwau- 
kee R.,  30  Wis.  689;  Railroad  Co.  v.  Manuf.  Co.,  16  Wall.  (U.  S.)  318; 
Faulkner  v.  Hart,  82  N.  Y.  413. 

8  See  2  Mich.  538:  49  N.  Y.  442;  6  Robertson  (N.  Y.),  120;  Maignan 
V.  New  Orleans  R.,  24  La.  An.  333;  00  Ark.  375. 

*  Shaw,  C.  J.,  in  1  Gray  (Mass.),  203;  10  Met.  (Mass.)  472;  Banse- 
mer  iv  Toledo  R.,  25  Ind.  434;  Francis  v.  Dubuque  R.,  25  Iowa,  60; 
Jackson  v.  Sacramento  Valley  R.,  23  Cal.  268;  McCarty  v.  New  York  & 
Erie  R.,  30  Penn.  St.  247  ;  Neal  v.  Wilmington  R.,  8  Jones  (N.  C),  482; 
111  Ga.  6. 

5  Rice  V.  Hart,  118  Mass.  201.  And  see  Shepherd  v.  Bristol  R.,  L.  R. 
3  Ex.  189. 


248  '  THE   LAW  OF   BAILMENTS 

continue  after  the  transit,  until  the  goods  are  properly  dis- 
charged and  stored ;  upon  which  the  company  ceases  to  be  a 
common  carrier,  and  assumes  the  less  hazardous  posture  of 
warehouseman.  And  under  either  rule  the  carrier  risk,  after 
a  reasonable  time  to  take  away  has  expired,  merges  in  that  of 
mere  warehouseman.^  For  careless  discharge  or  negligent 
storage  of  the  chattels  carried,  or  carriage  to  some  other  point 
distant  from  the  proper  place  of  delivery,  so  as  to  subject  the 
owner  to  special  loss  or  damage,  a  railway  is  of  course  charge- 
able, whether  it  be  in  the  one  capacity  or  the  other.^ 

412.  We  should  note  that  it  is  the  reasonable  opportunity, 
rather  than  technical  notice,  which  those  States  insist  upon 

1  Ih.;  71  IlL  96;  Chicago  R.  v.  Scott,  42  III.  132  ;  98  Mass.  212. 

The  foregoing  decisions  show  on  a  most  important  issue  an  irreconcil- 
able conflict  of  authority  in  leading  States  where  railway  traffic  is  con- 
ducted, —  a  situation  greatly  to  be  deplored.  The  subject  may  be  explored 
at  length  by  examining  the  opinion  of  Cooley,  C.  J.,  in  McMillan  r. 
Michigan  R.,  16  Mich.  103;  and  the  opinion  of  Gray,  C.  J.,  in  Rice  v. 
Hart,  118  Mass.  201.  See  also  38  Conn.  143,  151;  42  111.  132.  It  is 
observable  that  railway  usage  has  been  much  insisted  upon  as  the  reason 
of  the  Massachusetts  rule. 

In  New  York  the  Massachusetts  rule  is  pointedly  condemned  in  a  re- 
cent case  where,  certainly,  the  consignee  would  otherwise  have  been  put 
to  great  hardship.  Faulkner  v.  Hart,  82  N.  Y.  413.  The  court  here 
observes  that  the  decisions  of  a  court  of  one  State  upon  a  question  of 
commercial  law  are  not  obligatory  upon  the  courts  of  other  States.  A 
late  South  Carolina  case  shows  the  court  divided  on  this  question.  11 
S.  C.  158.  In  40  Kan.  184,  the  carrier  said  goods  had  not  arrived  when 
they  had  arrived.  And  see  91  Tenn.  708;  70  Fed.  (U.  S.)  764.  See  80 
Ala.  38.  Special  stipulations  in  the  way-bill  or  special  contract  or  local 
legislation  may  regulate  on  this  point. 

In  this  collision  of  State  authority,  the  opinion  of  the  Supreme  Court 
of  the  United  States  on  this  subject  is  desirable.     See  179  U.  S.  415. 

2  92  Wis.  393;  Columbus  R.  v.  Ludden,  89  Ala.  612.  "Reasonable 
time  "  begins  to  run  even  before  a  notice  is  given.     lb. 

8  See  6  Gray  (Mass.),  542;  Rice  v.  Boston  &  Worcester  R.,  98  Mass. 
212;  Louisville  R.  v.  Gilmer,  89  Ala.  534;  IMitchell  v.  Lancashire  R., 
L.  R.  10  Q.  B.  256;  Cahn  v.  Michigan  Central  R.,  71  111.  90;  5  Dillou 
(U.  S.),  428.  Towards  goods  in  their  possession  merely  as  warehousemen, 
railways  are  not  bound  to  exercise  more  than  ordinary  care  and  diligence. 
Pike  V.  Chicago,  &c.  R.,  40  Wis.  583. 


TERMINATION  OF  COMMON  CARRIER'S   RESPONSIBILITY      249 

\vliere  the  consignee  is  most  favored  as  against  railway  car- 
riers. For,  where  the  consignee^  address  is  not  known  to  the 
carrier,  the  consignee  or  the  consignor  should  take  pains  to 
make  it  plainly  understood;  and  if,  after  due  inquiry,  the 
railway  carrier  fails  to  ascertain  such  address,  the  notice  is 
excused,  and,  after  a  reasonable  time  for  removal  has  elapsed, 
the  liability  of  the  carrier  who  has  stored  the  goods  will  be 
chanofed  to  that  of  Avarehouseman.^  And  if  the  consimee 
has  had  reasonable  opportunity  to  remove  his  goods,  but  the 
railway  company  consents,  for  mutual  convenience,  that  they 
may  remain  longer  in  the  freight  house,  the  presumption 
arises  that  the  exceptional  risk  as  public  carrier  exists  no 
longer.^ 

413.  Expressmen  and  express  companies  are  generally  bound, 
however,  to  make  personal  delivery,  even  though  they  avail 
themselves  of  carriage  by  rail ;  and  so,  too,  with  wagoners 
and  teamsters  generally ;  this  being  their  common  custom, 
and,  indeed,  a  chief  reason  with  many  for  employing  the  ser- 
vice of  such  a  carrier  in  these  days  Avhen  one  might  transmit 
his  goods  more  cheaply  as  railway  freight,  to  the  same  point 
of  destination.  Where  delivery  should  be  made  to  the  con- 
signee at  his  place  of  business,  delivery  should  be  during 
business  hours,  and  witli  reasonable  regard  to  tlie  safety  of 
the  goods,  and  the  consignee's  convenience ;  delivery  at  the 
consignee's  residence,  wlien  proper  at  all,  must  be  made  in  a 
suitable  manner,  and  at  a  suitable  time  ;  and,  generally  speak- 
ing, nothing  short  of  prevention  by  act  of  God  or  of  public 
authority  or  of  a  public  enemy,  or  by  the  conduct  of  his  cus- 
tomer, can  excuse  an  express  carrier  from  actual  delivery  of 

1  §  513;  Pelton  r.  Rensselaer,  &c.  R.,  54  N.  Y.  214. 

2  Fenner  c.  Buffalo,  &c.  R.,  44  N.  Y.  505,  511.  See  also  85  N.  C.  423  ; 
Welch  V.  Concord  R.,  68  N.  H.  206. 

Usage  sometimes  requires  the  carrier  to  deliver  loaded  cars  upon  an 
independeni;  track,  whereupon  his  responsibility  as  bailee  ceases,  even 
though  the  cars  are  to  be  subsequently  loaded  and  returned  on  a  new 
bailment.  66  Ala.  167  ;  123  111.  594.  In  various  cases,  the  usage  arises 
for  consignees  to  unload  in  bulk  and  the  cars  do  not  go  to  the  freight 
house  for  that  purpose.     See  72  Iowa,  535;  59  Minn.  161. 


250  THE   LAW   OF   BAILMENTS 

the  thing  to  the  proper  party .^  Personal  delivery  dispenses 
with  personal  notice  and  affording  reasonable  opportunity  to 
remove  the  goods ;  which  otherwise,  in  localities  where  or 
in  seasons  when  business  usage,  the  character  of  the  goods, 
and  the  sender's  knowledge  and  assent,  might  justify  an 
express  company  in  non-deli verj^,  the  law  will  insist  upon.'^ 
The  obligation  of  a  carrier  to  make  personal  delivery  may 
be  confirmed  by  special  circumstances.^ 

414.  To  consider  the  responsibility  as  warehouseman  some- 
what further.  We  have  seen,  that  a  carrier  may  become  him- 
self the  warehouseman  or  depositary  of  goods  left  upon  his 
hands  after  his  transportation  duty  terminates  ;  or  he  may  con- 
stitute some  responsible  third  party  the  warehouseman.*  In 
the  latter  case,  the  nature  of  the  carrier's  delivery  must  deter- 
mine on  whose  behalf  it  is  made;  for,  if  the  consignee  fails, 
after  reasonable  opportunity,  to  take  the  goods,  the  carrier 
has  his  election  to  make  the  third  party  his  own  agent,  for 
whose  negligence  he  shall  stand  responsible,  or  to  divest  him- 
self of  such  risks  by  making  such  third  party  agent  of  the 
owner. ^  Where  the  carrier  himself  becomes  warehouseman 
of  the  goods,  personally  or  by  his  own  agent,  it  is  of  impor- 
tance to  note  whether  the  transportation  duty  has  ended,  or 
not,  upon  the  principles  already  discussed.     For,  in  the  one 

1  §  514;  Merwin  v.  Butler,  17  Conn.  L38 ;  Marshall  r.  American  Ex- 
press Co.,  7  Wis.  1;  23  111.  197;  6  Bosw.  (N.  Y.)  235;  American  Mer- 
chants' Union  Express  Co.  i\  Wolf,  79  111.  430. 

As  to  notifying  and  holding  as  bailee  where  the  consignee  refuses  to 
receive,  etc.,  see  ante,  399 ;  Kremer  v.  Southern  Express  Co.,  1  Coldw. 
(Tenn.)  350;  Merrill  v.  Expre.ss  Co,  62  N.  H.  514;  IMarshall  v.  Ameri- 
can Express  Co.,  7  AVis.  1;  Witbeck  v.  Holland,  45  N.  Y.  13;  92  Penn. 
St.  323. 

2  See  23  111.  197;  Packard  v.  Earle,  113  Mass.  280.  As  to  delivering  to 
a  consignee's  agent,  see  99  Mass.  259. 

8  Hyde  v.  Trent  Xav.  Co  ,  5  T.  R.  389;  Cahn  v.  INIichigan,  &c.  R.,  71 
111.  96.     As  to  the  force  of  usage  rr  special  contract,  see  415,  post. 

*  Ante,  399. 

5  §  516;  Great  Northern  R.  v.  Swaffield,  L.  R.  9  Ex.  132;  Bickford  v. 
Metropolitan  Steamship  Co.,  109  Mass.  lol ;  Hathorn  v.  Ely,  28  N.  Y. 
78,  81.  See  Alabama  R.  r.  Kidd,  35  Ala.  209,  where  the  contract  was  to 
deliver  to  the  carrier's  own  agent. 


TERMINATION   OF   COMMON  CARRIER'S   RESPONSIBILITY      251 

case,  he  remains  no  longer  chargeable  as  insurer,  and  under 
the  carriage  contract,  but  must,  for  loss  or  injury  occasioned 
while  acting  in  this  new  capacity,  be  held  answerable  only  as 
would  any  other  ordinary  bailee  for  hire,  supposing  the  bail- 
ment to  be  with  intended  recompense,  or  as  a  gratuitous 
bailee,  if  the  trust  be  without  recompense.^  In  the  other 
case,  however,  and  where  the  transportation  duty  has  not 
been  fully  performed,  his  liability  is  essentially  that  of  com- 
mon carrier,  or  such  as  makes  the  bailee  answerable  at  the 
common  law  for  losses  by  rioters,  accidental  fires,  and  the 
like;  which  rule  must  further  apply  where  the  carrier  unjus- 
tifiably deposits  the  goods  at  some  intermediate  place  on  his 
route,  or  sends  by  a  conveyance  different  from  that  agreed 
upon,  or  has  carried  them  carelessly  out  of  the  way,  or,  after 
their  arrival  at  the  point  of  destination,  holds  them  still, 
without  having  as  yet  given  the  notice  or  reasonable  oppor- 
tunity of  removal,  or  made  the  personal  delivery  which  was 
incumbent  upon  him.^ 

415.  Usage,  special  contract,  or  legislation  may  affect  the 
common  carrier's  obligation  of  deliver}-,  as  it  often  does  the 
transportation  undertaking  in  other  respects.^  This  the  drift 
of  the  present  chapter  has  already  indicated.*     While,  gener- 

1  4  T.  R.  5S1;  L.  R.  3  Ex.  189;  10  Met.  (Mass.)  472;  Norway  Plains 
Co.  V.  Boston  &  Maine  R..  1  Gray  (Mass  ),  263;  Francis  v.  Dubuque  R., 
25  Iowa,  60;  Neal  v.  Wilmington  R.,  8  Jones  (N.  C),  482;  Bansemer  i^. 
Toledo  R.,  25  Ind.  434;  .fackson  t\  Sacramento  Valley  R.,  23  Cal.  268, 
"We  have  already  seen  that  our  States  rule  differently  as  to  the  exact 
point  at  which  the  railway  carrier  divests  himself  of  his  responsibility  as 
such,  and  becomes  a  warehouseman.     Ante,  411. 

2  §  516;  IT.  R.  27;  125  Penn.  St.  620;  5  T.  R.  389;  White  v.  Uuin- 
phery,  11  Q.  R.  45;  6  W.  &  S.  (Penn.)  62. 

As  to  the  responsibility  of  a  connecting  carrier  in  sending  beyond  his 
own  route,  see  c.  9,  post.  In  general,  the  duty  of  making  proper  delivery 
is  the  same,  whether  one  receives  the  property  directly  from  the  consirrnor, 
or  from  some  other  carrier  to  whom  it  was  originallv  bailed.  38  111.  503; 
§  517. 

^  Ante,  c.  5.  The  usage  or  special  contract  should  be  reasonable  and 
just. 

*  §  519.  Usage  of  the  port  is  often  set  up  to  justify  the  peculiar  method 
of  delivering  from  a  vessel.     See  87  N.  Y.  240,  as  to  the  designation  of 


252  THE   LAW   OF   BAILMENTS 

ally  speaking,  the  prima  facie  obligation  of  a  carrier,  with 
regard  to  delivery,  may  be  affected  by  a  well-established  usage 
consonant  to  public  policy  and  generally  understood,  so  uni- 
formly and  so  long  ought  the  usage  to  have  been  acquiesced 
in  by  the  public  that  a  jury  would  feel  constrained  to  say 
that  it  entered  into  the  minds  of  the  contracting  parties  as 
part  of  the  contract.^  Yet  it  suffices  that  a  carrier  does  his 
business  according  to  the  regular,  known,  and  ordinary  modes, 
or,  if  the  other  party  understood  it,  his  own  particular  modes ; 
and  the  carrier  need  not  prove  that  his  consignor  understood 
an  established  usage,  for  the  usage  explains  itself, ^  As  to 
delivery,  which  peculiarly  concerns  the  local  terminus,  and 
not  so  much  a  consignor  as  the  consignee,  the  course  of 
business  at  the  place  of  destination  may  control  concerning 

an  elevator  by  the  consignee.  See  also  3  Wall.  (U.  S.)  225.  Whether 
carriers  by  inland  waters  may  divest  themselves  of  responsibility  like 
carriers  by  sea  or  not,  usage  long  established,  unitorm,  and  well  known 
may  regulate  the  mode  of  delivery.  The  Richmond,  1  Biss.  (U.  S.)  49. 
Where  a  bill  of  lading  is  silent  as  to  the  particular  place  or  mode  of 
delivery,  the  usage  and  regulations  of  the  port  or  the  arrangements  made 
with  the  consignee  should  determine;  but  it  is  the  custom  of  the  partic- 
ular port,  and  not  of  other  ports,  which  governs.  10  Fed.  (U.  S.)  779. 
Delivery  to  the  wrong  elevator,  or  at  the  wrong  wharf,  is,  in  such  cases, 
a  misdelivery. 

For  a  local  usage  of  railroads  to  deliver  under  a  bill  of  lading  not 
containing  the  words  "or  order,"  without  requiring  production  of  the 
document,  see  13o  Mass.  154.  Usage  in  some  of  our  sparsely  settled 
regions  to  deliver  goods  by  water  at  a  landing-place  where  there  is  neither 
warehouse  nor  agent  to  keep  custody,  binds  customers  who  are  aware  of 
it.  4  McCrary  (U.  S.),  383.  And  4G  Ark.  222,  affirms  the  usage,  even 
as  against  customers  not  aware  of  it.  And  so  is  it  with  the  custom  of 
delivering  by  railway  at  a  side  track  and  there  leaving  the  car  and  its 
contents  for  the  consignee.  Ante,  412.  Those  who  do  business  with  the 
carrier  upon  such  conditions  are  botnid  to  look  after  their  property  when 
it  arrives.  Usage  may  require  specially  a  personal  delivery  or  may  dis- 
pense with  it.     See  ante,  412,  413. 

1  Rushforth  v.  Hadfield,  6  East,  519;  Alabama  River  R.  v.  Kidd,  35 
Ala.  209 ;  Cahn  v.  IMichigan  Central  R.,  71  111.  96. 

2  See  25  Wend.  (N.  Y.)  660;  Farmers',  &c.  Bank  v.  Champlain 
Trans.  Co.,  16  Vt.  52;  s.  c.  18  Vt.  131;  8.  c.  23  Vt.  186  Loveland  v. 
Burke,  120  Mass.  139. 


TERMINATION  OF  COMMON  CARRIER'S   RESPONSIBILITY      253 

the  proper  time,  place,  and  manner  of  discharging  the  carrier's 
duty.'  But  usage  or  custom  cannot  prescribe  that  acts  which 
the  law  declares  to  be  a  delivery  shall  not  suificiently  consti- 
tute it,  or  otherwise  overturn  what  public  policy  sets  up ; 
and,  where  delivery  according  to  usage  becomes  from  special 
circumstances  unsuitable,  the  carrier  cannot  so  discharge 
himself.^ 

416.  Special  contract  may  regulate  the  time,  place,  and  man- 
ner of  delivery,  and,  as  we  Iiave  incidentally  shown,  affect 
very  considerably  the  common  carrier's  obligation  in  this  and 
other  respects,  by  stringent  or  lax  provisions ;  though  not,  as 
it  appears,  to  the  extent,  in  America  at  least,  of  permitting 
persons  of  this  profession  to  stand  toward  their  customers 
with  lesser  burdens,  under  the  most  favorable  aspect,  than  are 
sustained  by  private  bailees  for  hire.^  Special  terms,  relative 
to  delivery  and  the  mode  of  terminating  the  carrier's  respon- 
sibility, must,  if  reasonable  of  themselves  and  conformable  to 
public  policy,  prevail  over  local  usage  as  well  as  common  law ; 
and  the  common  carrier's  performance  should  in  general  be  in 
accordance  with  liis  engagement ;  ^  which,  as  modern  trans- 
portation is  conducted,  is  quite  connnonly  to  be  gathered 
from  expressions  used  in  the  bill  of  lading,  way-bill,  or  receipt 
given  for  the  goods,  to  which  the  shipper  has  actually  or  by 

1  §  519.  It  has  been  held  that  a  carrier  may  show  usage  to  deliver  at 
certain  stopping- places  only.  See  McMasters  v.  Penn.  R.,  69  Penn.  St. 
374. 

2  Reed  v.  Richardson,  98  Mass.  216 ;  75  Iowa,  573  (usage  to  disregard 
bill  of  lading)  ;  Stone  v.  Rice,  58  Ala.  95. 

3  §  520;  ante,  363 ;  Gordon  v.  Great  Western  R.,  8  Q.  B.  D.  44  (a  reason- 
able construction  is  applied). 

*  A  carrier  may  thus  bind  himself  to  transport  and  deliver  without  a 
change  of  cars.  47  Iowa,  229.  Or  to  deposit  in  warehouse  at  the  con- 
signee's risk  and  expense  unless  the  goods  are  promptly  taken.  44  X.  Y. 
Super.  407.  Or  so  as  to  apply  a  specific  rule  as  to  ante,  411.  86  Ala.  159. 
And  see  Constable  v.  Steamship  Co.,  154  U.  S.  51;  Tarbell  c.  Royal  Ship- 
ping Co.,  110  N.  Y.  170.  Personal  notice  by  the  carrier  as  to  time  and  place 
of  discharging  cargo  may  be  thus  dispensed  with.  154  U.  S.  51.  But 
express  agreement  for  place  of  landing  must  be  followed.  68  Miss.  803. 
Express  company's  special  limitation  considered  where  the  consignee 
could  not  be  found.     62  N.  H.  514. 


254  THE   LAW   OF   BAILMENTS 

legal  inference  assented.^  If  public  policy  be  not  transcended, 
a  special  contract  may  define  the  character  and  mode  in  which 
the  railroad  carrier  shall  hold  goods  after  their  arrival,  or  what 
acts  shall  terminate  his  carrier  risk.^ 

417.  Legislation,  too,  may  be  found  affecting  the  operation  of 
the  rules  we  have  considered ;  and  it  might  well  be  employed 
more  extensively  to  expel  some  of  the  more  glaring  inconsis- 
tencies of  our  law  touching  the  delivery  obligation  of  railway 
and  other  carriers,  and  the  method  of  terminating  the  present 
relation  when  the  goods  have  reached  their  journey's  end.^ 

1  §  520.  The  principles  set  forth  in  the  preceding  chapter  as  to  the 
requirement  of  mutual  assent  and  reasonableness  of  interpretation  ap- 
ply to  terms  qualifying  the  duty  of  delivery  as  well  as  to  other  terms  of 
carriage  performance.  See  14  Blatchf.  (U.  S.)  9;  Hathorn  v.  Ely,  2S 
N.  y.  78.  On  the  other  hand,  negligent  delay  and  deviation,  or  mis- 
delivery or  misconduct  or  careless  delivery,  should  not  be  excused  under 
the  color  of  special  terms  of  carriage.  68  Ga.  80.5;  Dibble  r.  ]\Iorgan, 
3  Ben.  (U.  S.)  276.  And  see  1  11.  &  N.  63;  INIitchell  v.  Lancashire  R., 
L.  R.  10  Q.  B.  256;  72  N.  Y.  615;  127  N.  C.  293;  28  Wash.  439;  52  111. 
123  ;  47  Iowa,  262. 

2  Western  R.  v.  Little,  86  Ala.  159;  Feige  v.  Michigan  R.,  62  Mich.  1.; 
Draper  v.  Delaware  R.,  118  N.  Y.  118.  See  41  Or.  177,  as  to  unloading 
live-stock. 

2  §  521 ;  ante,  388.  See  49  Tex.  748  (course  for  railways  to  pursue 
in  delivering  freight)  ;"l02  ^'.  1.  120;  15  Fed.  (U.  S.)  209  (delivery  of 
live-stock) ;  56  Cal.  .584:  49  Tex.  748j  94  Cal.  168;  110  Cal.  348.  There 
are  various  local  statutes  which  authorize  the  sale  of  unclaimed  property 
by  certain  carriers. 


CHAPTER  VII. 

GENERAL   RIGHTS   OF   COxMMON  CARRIERS. 

418.  The  general  rights  of  the  common  carrier  which  remain 
for  our  consideration  are  :  I.  His  special  j)roperty  in  tlie  goods 
and  chattels  during  the  accomplishment  of  the  bailment  pur- 
pose. 11.  His  right  of  compensation,  with  or  without  the 
incidental  security  of  a  lien.^ 

419.  I.  Carrier's  special  property  in  the  things.  Every  com- 
mon carrier  is  invested  -with  a  special  property  in  the  goods 
and  chattels  which  a  customer  confides  to  him,  so  that  like 
other  bailees  for  mutual  benefit  he  may  maintain  an  action 
against  any  and  all  persons  who  disturb  his  possession  thereof 
and  injuriously  interfere  with  the  performance  of  his  lawful 
duties.  He  may  thus  replevy  the  thing  from  a  stranger,  or 
sue  in  trover  for  its  conversion.  He  may  sue  in  his  own 
name  for  a  trespass  upon  or  injury  to  the  property  carried.^ 
The  general  reason  of  this  right  of  action  in  the  common  car- 
rier's behalf  is  that,  as  bailee,  he  must  answer  over  to  the  bailor 
or  owner  whom  he  represents  for  the  whole  property  committed 
to  him ;  and  this  is  reinforced,  in  instances  like  the  present, 
by  the  consideration  that  he  commonly  has  a  special  interest  in 
the  particular  goods  or  chattels,  as  security  for  his  recompense. 
So  ample,  therefore,  is  the  remedy  afforded  the  carrier,  that,  as 
against  trespassers,  he  has  been  allowed  to  recover,  in  damages, 
the  full  value  of  the  goods.^  So,  too,  if  a  carrier  by  mistake 
or  the  fraud  of  others  delivers  goods  to  the  wrong  person,  he 

1  §  522, 

^  §  523;  1  Camp.  451,  per  Lord  Ellenborouq:h.  The  carrier's  recovery 
of  full  damages  against  the  wrong-doer  will  bar  the  owner.  Steamboat 
Farmer  r.  Macrow,  26  Ala.  189.  And  see  as  to  carriage  by  water, 
Beaconsfield,  The,  158  U.  S.  303. 

8  26  Ala.  189;  Campbell  v.  Conner,  70  N.  Y.  424. 


256  THE   LAW   OF   BAILMENTS 

may  replevy  the  goods  or  sue  in  damages  for  their  conversion ; 
and  this  right  avails  generally  against  the  wrong  receiver  of 
the  goods  and  any  person  subsequently  receiving  them.^ 

420.  The  carrier,  too,  as  a  principal  bailee  ■who  employs  his 
own  subordinates  in  the  performance  of  an  undertaking,  is  en- 
titled to  sue  his  servant,  sub-contractor,  connecting  carrier,  or 
other  subordinate,  by  virtue  of  his  own  responsibility  over  to 
the  owner  for  their  acts,  and  the  circumstance  that  he  has  em- 
ployed them,  whenever  any  such  party  stands  chargeable  with 
a  breach  of  contract  made  Avith  him.^ 

421.  II.  Carrier's  Right  of  Compensation,  As  to  his  right  of 
compensation,  with  or  witliout  the  incidental  security  of  a  lien, 
we  have  shown  it  in  a  previous  chapter,  so  highly  favored  at  our 
law  that  one  may  refuse,  in  the  exercise  of  his  public  vocation, 
to  transport  goods  and  cliattels  for  any  customer,  unless  first 
paid  his  reasonable  reward  for  the  service.^  More  commonly, 
however,  is  this  reward  claimed  by  him  at  the  journey's  end  as 
a  condition  precedent  of  surrendering  the  property  to  the  con- 
signee. Where  common  carriers  receive  goods  in  the  ordinary 
course  of  business,  to  be  transported  from  one  place  to  another, 
they  may  expressly  stipulate  for  any  reward  which,  of  itself, 
is  not  extortionate,  oppressive,  or  to  the  special  disfavor  of  in- 
dividuals; but  in  the  absence  of  express  stipulation,  the  law 
implies  that  the  usual  and  customary  or  reasonable  compensa- 
tion shall  be  paid.* 

422.  The  word  "  freight  "  is  often  used  to  denote  the  recom- 
pense of  a  carrier,  —  a  word  which,  originating  in  maritime 
law,  was  once  restricted  to  conveyance  by  water,  but  now  ap- 
plies as  well  to  inland  transportation,  though  more  especially 
to  that  by  railway.  But  other  words  are  used  with  more  par- 
ticular reference  to  the  lesser  carriers ;  such  as  "  charges," 

1  80  Ala.  100.  Carrier  may  sue  in  trover,  or  waive  the  tort  aud  sue  for 
value.    Johnson  v.  Gulf  Co.  (Miss.)  34  So.  3.57. 

2  §  524;  1  Ind.  532  ;  White  v.  Bascom,  28  Vt.  268;  Chicago,  &c.  R. 
V.  Northern  Line  Packet  Co.,  70  111.  217;  Smith  r.  Foran,  43  Conn.  124. 

3  A  nie,  292 ;  §  525. 

4  §  525;  2  Duer  (X.  Y.),  471  ;  Rowland  v.  New  York  R.,  61  Conn.  103; 
Louisville  R.  v.  Wilson,  119  Ind.  352. 


GENERAL  RIGHTS  OF  COMMON  CARRIERS  257 

"  reward,"  "  hire  money,"  "  fare ; "  this  last  word  applying 
rather  to  passengers  and  their  baggage,  than  to  the  general 
conveyance  of  goods  and  chattels. ^ 

422  a.  The  consignor  of  goods,  who  has  once  completely  deliv- 
ered them  to  the  carrier,  has  no  right  to  demand  them  again, 
nor  to  breaker  prevent  their  transit,  regardless  of  the  carrier's 
just  indemnity ;  nor  would  he,  by  altogether  refusing  to  de- 
liver them  according  to  the  contract  of  transportation,  absolve 
himself  from  making  compensation  in  damages  for  his  breach 
of  engagement.  The  approved  rule  as  to  carriage  by  a  general 
ship,  extending,  perhaps,  to  other  modes  of  conveyance  by  land 
or  water,  is  that  one  who  has  laden  goods  cannot  insist  on 
having  them  relanded  and  delivered  to  him  without  paying  the 
freight  that  might  become  due  for  carrying  them,  and  indem- 
nifying the  master  against  the  consequences  of  signing  a  bill 
of  lading.2  But,  as  regards  the  question,  when  lien  attaches 
to  the  goods,  and  the  earning  of  freight,  as  such,  commences, 
authorities  are  not  uniform.^ 

423.  "Where  goods  are  intercepted  by  the  owner  or  consignee, 
before  they  reach  their  final  destination,  he  is  liable  for  the 
full  freight  or  recompense,  provided  the  carrier  has  done  no 
wrong,  and  was  ready  to  deliver  at  their  ultimate  destination, 
and  does  not  consent  to  an  abatement  of  his  charges.*  But 
where  acceptance  is  made  short  of  the  place  originally  agreed 

1  §  526;  21  How.  (U.  S.)  527. 

See  distinction  made  in  railway  recompense  as  between  1' transportation 
.service  "  and  "switching  "  or  "  transfer  service  "  (fixed  charge  per  car),  iu 
no  Ga.  173. 

2  §  527  ;  Tliomson-v.  Trail,  2  C.  &  P.  334,  per  Lord  Tenterden ;  .Tin- 
dal  ('.'Taylor,  4  E.  &  B.  219,  227. 

3  Cf.  4  E.  &  B.  219;  Thompson  v.  Small,  1  C.  B.  328 ;  6  Duer  (N.  Y.), 
194  (from  delivery  and  acceptance  of  goods);  Bailey  r.  Damon,  5  Gray 
(Mass.),  92  (from  commencement  of  voyage  if, at  least,  the  carrier  might 
have  substituted  other  goods).  When  this  question  arises  for  application 
to  railway  cars,  it  will  be  found  to  present  a  different  aspect  from  that  of 
carriage  by  a  single  vehicle,  because  of  the  circumstance  that  freight  cars 
are  attached  or  left  off  from  a  train,  according  to  the  nature  and  amount 
of  personal  property  requiring  present  transportation. 

*  §  628  ;  Violett  v.  Stettinius,  5  Cranch  C.  Ct.  (U.  S.)  559. 

17 


258  THE   LAW   OF   BAILMENTS 

upon,  and  the  mutual  understanding  appears  to  justify  the 
supposition  that  the  carrier  abates  his  charges,  then  the  carrier 
will  be  entitled  only  to  pro  rata  compensation ;  which  would 
be  the  general  result  of  an  acceptance  where  the  transit,  from 
some  cause  exonerating  the  carrier  from  liability,  was  broken 
up  or  seriously  interrupted.^  If,  however,  the  consignee  or 
owner  intercepts  and  takes  his  goods  because  of  the  carrier's 
tortious  conduct,  or  his  inexcusable  refusal  to  complete  the 
transit  according  to  his  contract,  the  carrier  earns  no  freight 
at  all.  And  wherever  the  carrier  inexcusably  loses  the  goods 
on  the  way,  or  they  are  wrongly  delivered,  or  other  act  is  done 
which  the  law  visits  upon  the  carrier,  rendering  their  delivery 
impracticable,  he  has  no  right  as  such  to  receive  freight  for 
their  carriage.^ 

424.  Indeed,  the  rule  which  has  long  been  asserted  of  carriage 
by  water  under  a  bill  of  lading  is  that  the  contract  of  trans- 
portation is  an  entire  one,  so  that  the  carrier  can  recover  no 
compensation  unless  he  fulfils  his  engagement  by  making  a 
complete  transit  and  complete  delivery.^  But  to  thus  permit 
the  customer  to  derive  an  advantage  at  the  carrier's  expense 
seems  unnecessarily  harsh,  and  such  a  rule  must  often  discour- 
age the  carrier  from  doing  his  best  where  calamity  occurs. 
This  doctrine,  which  probably  originated  out  of  regard  for  the 
peculiar  incidents  and  responsibilities  attending  ocean  naviga- 

1  Lorent  v.  Kentring.  1  Nott  &  M.  (S.  C.)  132  ;  Portland  Bant  v. 
Stubhs,  6  Mass.  422,  427;  Parsons  v.  Hardy,  14  Wend.  (N.  Y.)  215; 
Hunt  V.  Haskell,  24  Me.  339. 

2  Portland  Bank  v.  Stubbs,  6  Mass.  422,  427  ;  6  Har.  &  J.  400  ;  Say- 
ward  r.  Stevens,  o  Gray  (Mass.),  97  ;  Mason  ?'.  Lickbarrow,  1  H.  Bl.  359. 

3  §  529  ;  3  Sumn.  (U.  S.)  542,  550,  and  cases  cited;  Sayward  v.  Stev- 
ens, 3  Gray  (Mass.),  97.  The  convenience  with  which  the  consignee  may 
supply  the  deficiency  is  held  not  to  better  the  carrier's  claim  for  compen- 
sation.    Sayward  v.  Stevens,  ib. 

No  freight  is  due,  whether  full  or  pro  rata  ("under  the  rule  of  the  text), 
where  a  vessel  has  been  captured  and  condemned  with  its  cargo  at  an  in- 
termediate port,  though  part  of  the  cargo  is  restored  and  sold  at  the  same 
port.  1  Mason  (U.  S.),  43.  Nor  generally  in  case  of  a  compulsory  sale 
at  an  intermediate  port  by  reason  of  the  disaster.  3  Ware  (U.  S.),  139. 
No  freight  is  earned  against  the  shipper  where  delivery  has  become  im- 
possible.    4  Blatchf.  (U.  S.)  443. 


GENERAL   RIGHTS   OF   COMMON   CARRIERS  259 

tion  and  the  carriage  of  cargoes,  where  the  presumption  is  a 
fair  one  that  intermediate  delivery  must  be  immensely  incon- 
venient to  an  importing  merchant,  applies  with  less  force  to 
land  transit  and  small  consignments ;  since  here,  to  a  much 
greater  extent,  one  carrier  may  forward  what  another  has  left, 
and  the  owner,  by  telegram  or  otherwise,  may  adapt  his  course 
to  the  emergency,  so  as  to  reduce  the  mischief  which  disaster 
occasions.  Even  in  water  carriage,  the  courts  have  broken  the 
force  of  the  rule  to  some  extent,  by  paying  fair  heed  to  the 
mutual  understanding  of  the  parties,  as  their  express  contract, 
acts,  or  general  conduct  make  it  manifest.^  Moreover  the  fault 
of  the  customer  shall  not  deprive  the  carrier  of  his  recompense  ; 
nor  shall  temporary  stress  or  delay  amount  to  a  breaking  up  of 
the  transit,^ 

425.  Thus,  where  the  carriage  contract  is  not  for  a  gross  sum, 
nor  relates  to  miscellaneous  goods,  unlike  in  kind  or  value, 
and  bearing  no  definite  proportion  to  one  another,  but  is  appar- 
ently designed  to  make  compensation  for  the  carriage  divisible 
and  apportionable,  such  a  contract  will  be  enforced  according 
to  its  intent;  as,  where  the  freight  is  stipulated  as  payable  by 
weight  or  measurement,  or  where  different  portions  of  the 
same  consignment  are  upon  distinct  and  separate  terras  as  to 
freight.^  Where,  too,  a  common  carrier  pays  damages  for  the 
loss  of  goods  by  his  breach  of  contract,  this  is  now  regarded 
as  tantamount  to  a  safe  delivery  in  many  instances,  so  as  to 
entitle  him  to  the  allowance  of  his  freight  thereon.^  And  if, 
from  some  cause  which  would  clearly  excuse  a  total  delivery, 
as,  for  example,  where  part  of  the  goods  consigned  were  de- 
stroyed by  lightning,  without  the  carrier's  fault,  or  perished 

^  As  in  a  waiver  by  consignee,  3  Sumn.  (U.  S.)  542  ;  3  Gray  (Mass.), 
97,  104;  2  McL.  422. 

2  2  McL.  (U.  S.)  422  ;  Industrie,  The  (1894),  P.  58  ;  4  Biss.  (U.  S.)  417  ; 
5  Duer  (X.  Y.),  .538  (leaky  barrels). 

8  §530;  10  East,  295;  Say  ward  v.  Stevens,  3  Gray  (Mass.),  97,  103. 
As  to  computing  payment  by  weight,  etc.,  see  6  Ben.  (U.  S.)  199. 

*  1  Bay(S.  C),  101;  Atkisson  v.  Steamboat  Castle  Garden,  28  Mo. 
121.  And  see  Hagerstown  Bank  v.  Adams  Express  Co.,  45  Penn.  St. 
419.     But  of.  8  Gray  (Mass.),  215. 


260  THE   LAW   OF   BAILMENTS 

from  natural  decay,  the  carrier  makes  delivery  of  a  portion 
only,  courts  incline  to  allow  him  freight  pro  rata  for  tlie  por- 
tion safely  delivered.^ 

426.  As  to  -what  may  have  been  actually  lost  in  transit,  the 
universal  rule  is,  in  tlie  absence  of  some  special  usage  or  con- 
tract to  the  contrary,  that,  provided  neither  owner  nor  carrier 
was  in  default,  and  saving,  of  course,  the  carrier's  common- 
law  risks  as  an  insurer,  the  goods  must  perish  to  the  one  and 
the  freight  to  the  other .^  Nor  is  a  special  contract  which  throws 
risks  of  loss  upon  the  owner  readily  assumed  to  make  him  pay 
freight  upon  what  is  lost  besides.^ 

427.  Where,  once  more,  delivery  is  incomplete,  and  the  carrier, 
after  making  a  partial  delivery,  unlawfully  withholds  delivery 
of  the  residue,  so  that  the  consignee  thereupon  replevies  them, 
freight  may  be  recovered  on  the  portion  already  delivered,  and 
also  on  such  portion  as  may  afterwards  arrive  and  be  taken  by 
the  officer  and  delivered  to  the  consignee  after  the  beginning 


1  4i  Barb.  (X.  Y.)  655;  The  Brig  Collenberg,  1  Black  (U.  S.),  170. 

It  appears  that  where  a  hiiiding  of  the  goods  is  prevented  by  the  govern- 
ment officials,  without  the  carrier's  fault,  freight  is  nevertheless  earned. 
Morgan  v.  North  Am.  lus.  Co.,  4  Dall.  455.  See  Howland  v.  Greenway, 
22  How.  491.  But  it  is  otherwise  with  a  seizure  caused  by  the  carrier's 
wrong.     Elwell  v.  Skiddy,  15  N.  Y.  Supr.  7o. 

2  §  530;  ante,  89;  4  Allen  (Mass.),  245. 

As  to  the  commercial  apportionment  of  freight,  and  the  circumstances 
under  which  it  may  be  claimed,  see  further,  §  530.  Capture  involves  a 
loss  of  freight  ;  but  a  recapture  and  performance  of  the  voyage  revives  the 
right.  Transshipment  after  disaster  may  keep  the  I'ight  of  freight  alive. 
But  this  must  be  deemed  affected  by  a  consideration  of  the  carrier's  duty 
in  this  re.spect.  1  Sneed  (Tenn.),  205  ;  Hopper  v.  Burness,  1  C.  P.  D. 
137.  Where  goods  are  so  far  damaged  as  to  utterly  lose  their  merchant- 
able character,  —  as  where  dates  are  soaked  in  salt  water  and  reduced 
to  a  pulp,  —  freight  is  precluded.  Asfar  v.  Blundell  (1896),  1  Q.  B. 
12.3. 

The  justifiable  conduct  of  the  carrier,  and  his  readiness  to  perform  Ws 
full  engagement  so  as  to  benefit  the  shipper,  seems  properly  to  be  taken 
in  his  favor  in  all  such  cases,  while  his  default,  or  a  determination  to  earn 
freight  regardless  of  the  shipper's  interests  under  an  emergency,  is  taken 
against  him. 

3  N.  Y.  Central  R.  v.  Standard  Oil  Co.,  87  N.  Y.  486. 


GENERAL  RIGHTS  OF   COMMON  CARRIERS  261 

of  the  service  of  the  replevin,  there  being,  as  to  all  this,  no 
demand  and  i-efusal;  but  as  to  that  portion  the  possession 
of  which  was  obtained  only  by  replevin,  the  carrier  cannot,  as 
it  appears,  recover  freight.^  And,  as  a  general  rule,  in  order 
to  claim  freight  under  his  lien  the  carrier  must  deliver  or 
tender  delivery  at  the  specific  place  agreed  on  and  not  else- 
where.^ 

428.  Freight  or  recompense  paid  in  advance,  may,  in  the 
absence  of  any  special  agreement  to  the  contrary,  be  re- 
covered back  if  it  is  not  actually  earned ;  that  is  to  say,  in 
general,  unless  the  carriage  has  been  fully  performed  con- 
sistently with  the  carrier's  undertaking.^  Otherwise,  how- 
ever, where  the  freight  has  been  actually  earned ;  and  reduced 
rates  for  the  carriage  might  furnish  a  consideration  for  an 
absolute  payment  in  advance  and  the  assumption  of  risks  of 
loss  besides.^ 

429.  The  understanding  of  the  parties,  however,  in  respect  of 
the  carriage  compensation  is  quite  commonly  to  be  gathered 
from  the  language  employed  in  the  bill  of  lading  or  other 
contract  of  affreightment  or  carriage.  The  carrier,  or  the 
party  from  whom  freight  or  recompense  is  claimed,  may 
show,  on  his  behalf,  that  the  actual  cargo  was  different  from 
that  described  in  the  bill  of  lading,  the  receipt  being  open  to 
explanation ;  ^  and  thus  the  carrier  may  be  found  entitled  to 
more  or  less  compensation  than  there  appears.*^  The  rule  is, 
that  though  goods  should  swell  or  shrink  naturally  on  the 
transit,  so  as  to  weigh  more  or  less  at  the  terminus  than  when 
taken  on  board,  this  will  not  affect  the  right  of  pro  rata  com- 
pensation  since  this   is  due    only  on  the  amount  which  is 

1  Boston  &  ]Maine  R.  v.  Brown,  15  Gray  (Mass.),  223  ;  §  531. 

2  1  Bosw.  (N.  Y.)  177,  185  ;  60  Mich.  56.  Thus  it  is  not  enough  for  a 
vessel  to  arrive  at  a  wharf ;  it  must  unload  there.     06  Md.  269. 

3  4  B.  &  Aid.  582;  Minturn  v.  Warren  Ins.  Co.,  2  Allen  (Mass.),  86, 
and  cases  cited;  9  Allen  (Mass.),  311;  §  532. 

*  12  Fed.  (U.  S.)  77;  and  see  16  Neb.  661. 

5  §  533;  Blanchet  i'.  Powell's  Colliery  Co.,  L.  R.  9  Ex.  74;  1  Sprague 
(U.  S.),  473. 

«  1  Hilt.  (N.  Y.)  221;  5  Duer  (N.  Y.),  538. 


262  THE   LAW   OF   BAILMENTS 

actually  shipped ;  ^  but  the  special  engagement  serves  as  the 
standard  for  special  cases.^ 

430.  Liability  for  freight  or  recompense  rests  generally  upon 
the  consignee  or  proper  party  receiving  the  goods ;  "  the  only 
discrepancy  between  the  decisions  being,"  as  one  of  our  Amer- 
ican judges  remarks,  ''  whether  tlie  damages  from  injury  to, 
or  non-delivery  of,  the  goods,  are  to  be  recovered  by  a  sepa- 
rate action  or  by  recoupment  from  the  freight  earned."  ^  In 
England  it  was  early  decided  that,  if  the  consignee  of  goods 
received  any  benefit  from  their  carriage,  he  could  not  defend 
himself  from  the  payment  of  freight  on  the  ground  that  the 
goods  had  been  inexcusably  damaged  by  the  carrier  to  an 
amount  exceeding  the  freiglit,  but  should  bring  his  cross- 
action.^  But  the  modern  inclination,  and  especially  in  this 
country,  seems  to  be  to  allow  tlie  injury  or  partial  loss  occa- 
sioned by  the  negligence  of  the  carrier  to  be  set  off  pro  tanto 
against   his    claim   for   compensation,  even  though  it  be  to 

1  Gibson  V.  Sturge,  10  Ex.  622. 

2  See,  as  to  the  recent  construction  of  certain  expressions  in  this 
respect,  L.  R.  2  Ex.  125  ;  L.  R.  2  Ex.  333 ;  L.  R.  1  C.  P.  649 ;  L.  H. 
8  C.  P.  679;  L.  R.  8  C.  P.  465;  L.  R.  4  C.  P.  138;  L.  R.  9  Q.  B.  99. 

Of  the  general  rule,  Bigelow,  C.  J.,  observes,  in  a  leading  case  on  this 
subject,  that  it  "  may  be  varied  or  annulled  by  an  express  agreement  in 
the  charter-party  or  bill  of  lading,  by  which  it  is  provided  that  money 
paid  in  advance  on  account  of  the  freight  shall  be  deemed  to  be  absolutely 
due  to  tlie  [ship]  owner  [or  carrier]  at  the  time  of  its  prepayment,  and 
not  in  any  degree  dependent  on  the  contingencies  of  the  performance  of 
the  contemplated  voyage  and  the  entire  fulfilment  of  the  contract  of  car- 
riage. 4  M.  &  S.  37;  3  II.  &  N.  405;  Hicks  v.  Shield,  7  El.  &  B.  633. 
But,  as  such  a  stipulation  is  intended  to  control  the  usual  law  applicable 
to  such  contracts,  and  to  substitute  in  its  place  a  positive  agreement  of 
the  parties,  it  is  necessary  to  express  it  in  terms  so  clear  and  unambiguous 
as  to  leave  no  doubt  that  such  was  the  intention  in  framing  the  con- 
tract of  affreightment.  Otherwise,  the  general  rule  of  law  must  pie- 
vail."  Benner  v.  Equitable  Safety  Ins.  Co.,  6  Allen  (Mass.),  222,  224. 
This  issue  is  raised  in  cases  where  insurance  is  made  upon  the  freight. 
See  Lawson  v.  Worms,  6  Cal.  365;  Atwell  v.  Miller,  11  Md.  348;  12  Fed. 
R.  77.  That  recompense  may  be  otherwise  varied  by  special  contract, 
see  ante^  421. 

"  Hill  r.  Leadbetter,  42  Me.  572,  576 ;  §  634. 

*  Shields  v.  Davis,  6  Taunt.  65 ;  Ritchie  v.  Atkinson,  10  East,  295. 


GENERAL   RIGHTS   OF   COMMON   CARRIERS  263 

extinguish  such  cLiim  altogether.^  The  relation  of  carrier 
and  consignee  does  not  establish  the  liabihty  of  the  latter  to 
pay  charges  or  to  accept  the  goods ;  but  where  the  consignee 
accepts  the  goods  and  the  carrier  dehvers  them  accordingly, 
the  consignee  must  pa}',  as  under  his  own  implied  contract.^ 

431.  But  the  consignor  or  shipper  is  ultimately  and  originally- 
liable  ;  and  independently  of  an  acceptance  at  the  end  of  the 
transit,  it  is  the  consignor  or  shipper  who  is  ordinarily  bound 
to  pay  the  freight  or  recompense  on  the  goods  whose  transpor- 
tation he  procures,  and  tlius  may  the  carrier  doubtless  regard 
him  when  thej^  are  offered  for  transportation.  And  if  the 
consignee  refuses  to  receive  the  goods  or  cannot  be  found, 
the  carrier  may  usually  have  final  recourse  to  the  party  who 
engaged  the  transportation.^  But  whenever  the  consignee 
engages  to  make  payment,  he,  too,  may  be  held  responsible 
accordingly.  The  tenor  of  bills  of  lading  and  similar  docu- 
ments of  title  and  transportation,  and  the  conduct  of  the  trans- 
ferees of  such  instruments,  may  aid  the  carrier  in  fixing  the 
liability  to  himself  of  others,  for  whose  benefit  the  transpor- 
tation was  conducted ;  and  the  receipt  of  goods  unpaid  for,  by 
the  consignee  or  proper  party,  usually  imports  a  promise  on 
the  part  of  such  consignee  to  stand  responsible  for  what,  on  the 
whole,  may  be  the  carrier's  rightful  charges.*  Even  though 
the  consignor  had  sold  the  goods  to  the  consignee  by  delivery 
to  the  carrier,  and  the  carrier  was  cognizant  of  that  fact,  the 
consignor  is  still  presumably  liable  for  the  freight ;  but  cir- 
cumstances may  repel  such  presumption  and  show  that  the 
carrier  meant  to  rel}^  upon  tlie  consignee  alone.^ 

1  Hinsdell  v.  Weed,  5  Denio  (X.Y.),  172  ;  Boggs  r.  Martin,  3  B.  Mon. 
239;  Bancroft  v.  Peters,  4  IMich.  519;  Hill  v.  Leadbetter,  42  Me.  572; 
Leech  v.  Baldwin,  5  Watts  (Penn.),  446;  Fitchburg  R.  v.  Ilanna,  6 
Gray  (Mass.),  539;  Dyer  v.  Grand  Trunk  R.,  42  Vt.  441.  And  see 
c.  8,  post. 

2  Central  R.  v.  MacCartney,  68  N.  J  L.  165. 

3  §  535 ;  13  East,  565 ;  Christy  r.  Row,  1  Taunt.  300 ;  Holt  v.  West 
cott,  43  Me.  445;  Wooster  v.  Tarr,  8  Allen  (Mass.),  271. 

*  Hill  u.  Leadbetter,  42  Me.  .572;  3  Ben.  (U.  S.)  39. 
5  Union  Freight  Co.  v.  Winkley,  159  Mass.  133. 


264  ^         THE  LAW  OF  BAILMENTS 

432.  So  strongly  do  the  courts  now  regard  the  consignor  of 
property  for  transportation  as  originally  liable  for  the  carrier's 
compensation,  that  the  shipper  named  in  a  bill  of  lading  may 
commonly  be  sued  by  the  carrier  for  his  remuneration,  even 
though  he  was  not  the  true  owner  thereof,  provided  the  car- 
rier has  seen  fit  to  waive  his  right  of  lien  and  to  deliver  the 
goods  without  receiving  payment  of  his  carriage  dues.^  And 
the  clause  customarily  inserted  in  bills  of  lading,  directing 
payment  of  fi'eight  by  the  consignee  or  his  assigns,  is,  by  the 
current  of  English  and  American  authorities,  intended  only 
for  the  benefit  of  the  carrier ;  so  that,  if  he  delivers  without 
receiving  such  payment,  he  may  recover  of  the  consigiior 
instead.'^  But  where  the  carrier  procures  the  further  stipula- 
tion in  such  bill  of  lading  that  the  freight  shall  be  payable  to 
him,  it  is  held  that  he  ought  personally  or  by  agent  to  be 
present  to  receive  payment  from  the  consignee  at  the  proper 
time  and  place.  In  general,  the  tardy  and  negligent  per- 
formance of  a  duty  respecting  payment  which  the  carrier 
owes  ma}^  in  case  of  the  consignee's  subsequent  insolvency, 
be  reasonably  visited  upon  himself  instead  of  his  consignor, 
because  of  the  two  innocent  parties  he  has  occasioned  the 
loss.^ 

433.  Where  the  consignee  receives  his  goods  under  a  bill  of 
lading,  this  is  evidence  from  which  a  contract  may  be  inferred 
to  pay  freight  in  consideration  of  the  carrier's  surrender  of 
his  lien  thereon ;  "*  and  some  cases  seem  to  presume  the  con- 
tract to  pay  very  strongly  under  such  circumstances.^     But 

1  §  536:  Wooster  v.  Tarr,  8  Allen  (Mass.),  271. 

2  Ih.  ■  Fox  V.  Nott,  6  11.  &  N.  630 ;  Shepard  v.  De  Bernales,  1-3  East, 
565 ;  Holt  v.  Westcott,  43  Me.  445 ;  Woodward,  J.,  in  Thomas  v.  Snyder, 
39  Penn.  St.  317,  322.  In  AVe.juelin  v.  Collier,  L.  R.  6  H.  L.  2H6,  cer- 
tain language  contained  in  the  bill  of  lading  was  held  equivalent  to  the 
usual  clause,  "  he  or  they  paying  freight." 

3  Thomas  v.  Snyder,  39  Penn.  St.  317  ;  §  535. 

4  §  536;  13  East,  399  ;  3  Bing.  383;  Sanders  v.  Yanzeller,  4  Q.  B.  260; 
Parke,  B.,  in  Young  v.  Moeller,  5  E.  &  B.  755,  760. 

5  Merian  v.  Funck,  4  Denio  (N.  Y.),  110  ;  3  E.  D.  Smith  (N.  Y.),  187. 
See  Hinsdell  v.  Weed,  5  Denio,  172,  as  to  the  effect  of  i-eceiving  the  goods 
in  part,  after  a  partial  loss.     See  also  68  N.  J.  L.  165. 


GENERAL  RIGHTS  OF  COMMON  CARRIERS  265 

if  the  consignee  designated  in  the  bail  of  hiding  indorses  the 
bill  over  before  receiving  the  goods,  his  liability  becomes 
thereby  transferred,  together  with  the  right  to  claim  tliem ;  ^ 
and  Avhoever  obtains  the  delivery  of  goods  under  such  a  bill 
contracts,  by  implication,  to  pay  the  freight  due  on  them.^ 
A  refusal  by  the  consignee  to  accept,  unless  upon  deduction 
for  damage  done  the  goods,  does  not  constitute  acceptance  of 
the  consignment,  and  a  contract  to  pay  freight.^ 

433  a.  Where  goods  are  consigned  by  the  terms  of  the  bill  of 
lading,  SO  that  delivery  is  made  to  one  party  as  the  agent  for 
another,  the  receiving  party  incurs  no  personal  liability  for 
the  freight ;  but  his  principal  will  rather  become  bound  as  the 
true  consignee.*  And  if  the  carrier  delivers  to  the  indorsee 
of  a  bill  of  lading  he  cannot  recover  freight  from  the  purchaser 
after  delivery  from  the  indorsee.^  One  to  wliom  a  bill  of  lad- 
ing is  assigned  merely  as  security  is  not  liable  for  the  freight 
if  he  does  not  receive  the  goods.^ 

434.  A  carrier  may  be  entitled  to  the  reimbursement  of  inci- 
dental charges  and  expenses  reasonably  incurred  in  the  per- 
formance of  the  transit,  which  his  special  contract  does  not 

1  13  East,  399;  Dougal  ik  Kemble,  3  Bing.  383;  Tobin  v.  Crawford, 
5  M.  &  W.  235 ;  9  M.  &  W.  716. 

2  lb.;  Merian  v.  Funck,  4  Denio  (N.  Y.),  110.  Dougal  v.  Kemble, 
3  Bing.  383,  is  a  case  in  point  where  this  rule  was  rigorously  enforced. 
And  tlie  assignee  who,  as  such,  receives  the  goods,  may  be  held  liable  for 
freight,  even  though  the  bill  of  lading  was  made  after  the  goods  were 
sent  to  a  public  warehouse.     3  E.  D.  Smith  (N.  Y.),  187. 

The  English  Bills  of  Lading  Act  strengthens  this  doctrine  as  enforced 
in  that  country,  by  providing  in  substance  that  the  rights  and  liabilities 
of  the  consignee  or  indorsee  shall  pass  from  him  by  indorsement  over  to 
a  third  person.  Act  18  &  19  Vict.  c.  Ill;  Smurthwaite  v.  VVilkins,  11 
C.  B.  N.  s.  842.  But,  as  concerning  the  carrier's  knowledge  and  assent 
to  such  transfer,  see  Lewis  v.  M'Kee,  L.  R.  2  Ex.  37;  L.  R.  4  Ex.  58. 

8  Davis  V.  Pattison,  24  N.  Y.  317. 

*  Amos  V.  Temperley,  8  M.  &  W.  798;  Grove  v.  Brien,  8  How.  (U.  S.) 
429;  Miner  v.  Norwich  R.,  32  Conn.  91;  7  Bosw.  (N.  Y.)  204. 

6  28  Fed.  (U.  S.)  335. 

6  Blanchard  v.  Page,  8  Gray  (Mass.).  281  ;  2  Sprague  (U.  S.),  49.  And 
see,  as  to  a  surety,  Trask  v.  Duvall,  4  Wash.  181.  See  also  7  Biss.  (U.  S.) 
365 ;  §  537. 


266  THE   LAW   OF   BAILMENTS 

restrain  him  from  demanding ;  but  he  cannot  charge  for 
services  which  were  not  performed,  nor  for  expenses  not 
reasonably  incurred,  nor,  in  general,  overcharge,  or  demand 
exorbitant  and  unlawful  recompense.  Sums  thus  extorted 
from  a  consignee  or  customer,  and  paid  under  protest,  the 
aggrieved  party  may  recover  from  the  carrier  as  for  money  had 
and  received.^  Nor  ought  a  carrier  in  general,  without  some 
sort  of  authority  from  the  consignee,  to  perform  acts  upon  the 
goods  outside  of  his  transportation  contract,  such  as  may  sub- 
ject the  consignee  to  extra  expense,  even  though  this  might 
prove  in  a  measure  beneficial ;  as  where  a  carrier  undertakes 
at  his  own  discretion  to  make  good  the  ordinary  wear  and  tear 
of  the  transit  at  his  consignee's  cost,  or  makes  personal  delivery, 
at  a  special  charge,  in  teams  of  his  own  employing,  when  his 
legal  duty  was  to  let  the  consignee  come  and  remove  them  from 
his  depot  in  whatever  mode  he  might  choose  for  himself.^ 

435.  On  the  other  hand,  where  the  sender  imposes,  and  has 
fraudulently  or  even  carelessly  induced  a  transportation  at 
reduced  rates,  the  carrier  ma}-,  upon  discovering  the  fraud  or 
error,  require  payment  of  his  regular  and  proper  charges  for 
carrying  the  goods.^  But  where  no  deceit  or  imposition  of 
any  kind  was  practised  by  the  sender,  and  no  inquiry  was  made 
as  to  the  contents  or  value  of  the  package,  the  carrier  cannot 
charge  more  than  his  agreed  recompense,  on  any  plea  that  it 
proved  more  hazardous  or  more  valuable  than  he  had  supposed.* 

1  §  538;  Garton  v.  Bristol  &  Exeter  R.,  1  B.  &  S.  112;  15  Neb.  390; 
Great  Western  R.  v.  Sutton,  L.  R.  4  H.  L.  226;  Heiserman  v.  Burlington 
R.,  63  Iowa,  732.  In  Peters  v.  Scioto  R.,  42  Ohio  St.  275,  the  customer's 
right  to  recover  illegal  exactions  as  not  paid  voluntarily  is  ruled  quite 
strongly.  Here  payments  were  made  periodically,  instead  of  upon  each 
shipment. 

2  Richardson  v.  Rich,  104  Mass.  156.  See  Cahn  v.  Michigan  Central 
R.,  71  111.  96. 

3  §  539;  Fry  v.  Louisville  R.,  103  Ind.  265;  Smith  v.  Findley,  34 
Kan.  316. 

*  Baldwin  v.  Liverpool  Steamship  Co.,  74  N.  Y.  125  (where  nitro- 
glycerine was  thus  carried). 

A  carrier  who  agrees  with  the  sender  to  carry  goods  at  less  than  the 
regular  rates  is  bound  thereby.     16  Neb.  661. 


GENERAL   RIGHTS   OF   COMMON   CARRIERS  267 

436.  Demurrage  is  an  allowance  -which  marine  law  makes 
by  way  of  indemnity  to  the  carrier  where  the  vessel  has  been 
detained  unieasonably  long  in  loading  or  unloading  the  cargo 
through  the  fault  of  the  customer.^  If  this  right  exists  at  all, 
so  as  to  afford  a  lien,  independently  of  contract,  statute,  or 
usage  tantamount  to  law,  it  is  confined  to  carriage  by  water ; 
and  while  railroad  carriers  may  store  in  case  of  delay  and 
charge  storage  rates,  or  perhaps  sue  for  special  damages,  they 
cannot,  it  is  held,  claim  dennirrage,  in  that  technical  sense, 
nor  enforce  such  a  claim  by  a  lien  upon  the  goods.^  Yet  our 
latest  decisions  show  that  the  term  "  demurrage  "  has  come 
into  considerable  use  among  railroad  carriers ;  and  if  the 
knowledge  of  such  a  custom  be  established  in  any  State  juris- 
diction, a  reasonable  demurrage  charge  may  be  imposed  by 
the  carrier  in  a  proper  case  without  consulting  the  shipper 
specially.^  Demurrage  under  marine  law,  and  irrespective 
of  special  contract,  imputes  fault  to  the  party  who  failed 
to  unload ;  and  hence  a  consignee's  reasonable  diligence  in 
unloading  must  depend  upon  the  particular  circumstances.* 

436  a.  As  to  tariff  rates,  it  is  constitutional  for  a  State  legisla- 
ture which  has  not  abdicated  fundamental  powers  to  fix  the 
maximum  compensation  which  railway  and  other  carriers  shall 
charge  the  public.^     But  a  State  cannot,  under  our  Federal 

^  §  540;  Bouv.  Diet.  "  Demurrage." 

2  Chicago  R.  v.  Jenkins,  lOo  111.  588;  15  Neb.  390  ;  East  Tennessee 
R.  V.  Hunt,  15  Lea(Tenn.),  261.  A  railway  may  stipulate  for  reasonable 
charges  for  such  delay  where  the  customer  is  to  unload  the  car  for  him- 
self.    88  Ga.  563.      See  also  Kentucky  Co.  v.  Ohio  R.,  Ky.  (1896). 

3  Tenn.  R.  v.  IMidvale  Street  Co.,  201  Penn.  St.  624  (application  in  close 
analogy  to  shipping,  where  consignee,  who  had  bound  himself  to  unload 
from  special  cars,  detains  them  unreasonably  long  for  that  purpose). 
And  see  88  Ga.  563. 

*  Delay  by  reason  of  the  strike  (1889)  at  London  dock  was  held  to 
constitute  no  claim  for  demurrage,  in  Hick  v.  Rodocanachi  (1891),  2  Q.  B. 
626 ;  aff.  (1893)  App.  22.     Of.  25  Q.  B.  D.  320. 

*  See  §  541;  Peik  v.  Chicago  R.,  94  U.  S.  164;  Chicago  R.  v.  Ackley, 
94  U.  S.  179.  And  see  as  to  power  of  State  commissioners,  133  Cal.  25  ; 
126  Mich.  113;  78  Miss.  550. 

^Modern  legislation  is  frequently  directed  against  the  tendency  of  rail- 


268  THE   LAW   OF   BAILMENTS 

constitution,  regulate  rates  of  transportation  to  and  from 
another  State. ^ 

437.  Recompense  may  be  enforced  at  the  journey's  end. 
The  compensation  of  the  common  carrier,  whose  pay  has  not 
been  taken  in  advance,  continues,  at  his  option,  recoverable 
upon  the  lien  security  of  the  goods  and  chattels  themselves ; 
which  is  so  common  a  means  of  assistance  in  obtaininor  one's 
dues  under  his  bailment  performance,  and  so  highly  advanta- 
geous, that  the  law  presumes,  wherever  a  carriage  undertaking 
is  performed  as  to  certain  property  without  previous  reward, 
that  the  carrier  meant  to  retain  its  possession  at  the  end  of  the 
transit  until  fully  remunerated ;  and  this,  whether  the  trans- 
portation were  by  land  or  water.^  In  its  character  and  extent 
this  lien  is  quite  similar  to  that  of  innkeepers  and  ordinary 
mutual-benefit  bailees  which  we  have  elsewhere  discussed.^ 
Thus,  there  may  arise  in  favor  of  the  carrier,  by  virtue  of  a 
wide-spread  custom  or  usage,  or  under  some  special  contract, 
a  general  lien  upon  his  customer's  goods,  for  a  general  balance 
of  accounts  ;  but  that  which  alone  the  law  can  be  said  to  favor 
is  a  particular  lien  upon  the  goods  transported,  for  the 
particular  charges  and  expense  incurred  in  respect  of  them.* 
This  particular  lien  of  the  carrier  is  superior  to  that  of  any 
pledgee  or  other  bailee  who  had  procured  the  carriage  of  the 
goods ;  but  he  cannot  extend  it  to  the  prejudice  of  other 
rights.^ 

ways  and  other  common  carriers  to  make  excessive  and  wrongful  charges, 
and  penalties  are  prescribed  for  the  offence.  Ante,  299.  See,  ih.,  con- 
cerning the  extent  of  the  carrier's  duty  not  to  transport  at  unequal  or 
excessive  rates. 

1  Wabash  R.  v.  Illinois,  118  U.  S.  557.     And  see  c.  10. 

2  §  542;  2Ld.  Raym.  752;  2  E.  D.  Smith  (N.  Y.),  195  ;  1  Schoul.  Pers. 
Prop.  §§  378-380;  The  Eddy,  5  Wall.  (U.  S.)  481;  Long  i'.  Mobile  R., 
51  Ala.  512  ;  110  Ga.  173;  cases  infra. 

»  Ante,  99,  256. 

*  6  East,  519;  7  East,  224;  Wright  v.  Snell,  5  B.  &  Aid.  350;  102 
Fed.  (U.  S.)  358;  Adams  v.  Clark,  9  Cush.  (Mass.)  215. 

^  Cooley  V.  Minnesota  R.,  53  Minn.  327.  Thus  as  against  a  consign- 
or's stoppage  in  transitu  tlie  carrier's  lien  will  hold  for  charges  and  ex- 
penses upon  that  consignment,  but  not  for  an  unpaid  balance  due  from 


GENERAL  RIGHTS  OF  COMMON  CARRIERS  269 

438.  As  to  what  charges  such  a  lien  protects.  The  carrier  may 
usually  retain  particular  goods,  by  virtue  of  his  lien  right, 
until  the  freight  and  charges  due  thereon  for  his  whole  trans- 
portation are  paid  or  tendered  him,  and  he  cannot  be  com- 
pelled to  give  them  up  sooner.  This  lien,  moreover,  extends 
to  all  the  proper  freight  and  storage  charges  upon  the  goods 
throughout  the  whole  of  a  continuous  transit  over  successive 
lines  ;  since  the  last  carrier  or  final  warehouseman  may  ad- 
vance what  was  lawfully  due  his  predecessors,  and  hold  the 
property  as  security  for  his  reimbursement.^  But  the  car- 
rier's lien  does  not  protect  overcharges ;  '^  nor  charges  unen- 
forceable of  legal  right ;  ^  nor  a  repayment  from  the  consignee 
of  what  has  been  akeady  paid  in  advance.*  It  does  not  as  a 
rule  secure  former  freight  remaining  unpaid,  or  the  custom- 
er's general  indebtedness ;  ^  nor  acts  performed  towards  the 
property  which  were  entirely  outside  of  what  was  expressed 
or  implied  in  the  carriage  contract.^  Yet  the  carrier's  lien  is 
sometimes  specially  extended  so  as  to  cover  the  extraordinary 
expenses  which  may  have  been  reasonably  incurred  on  the 

the  consignee  on  other  consignments.  Potts  v.  X.  Y,  R.,  1.31  Mass.  455  ; 
Pennsylvania  R.  v.  Oil  Works,  126  Penn.  St.  485;  102  N.  C.  390;  Penn. 
Co.  V.  Georgia  R.,  94  Ga.  630.     See  ante,  104. 

1  §  543  ;  8  Gray  (Mass.)  262  ;  Briggs  v.  Boston  &  Lowell  R.,  6  Allen 
(Mass.),  24:0  ;  White  v.  Vann,  6  Humph.  (Tenn.)  70  ;  Schneider  v.  Evans, 
25  Wis.  241;  1  Hilt.  (N.  Y.)  499  ;  85  Ga.  343.  And  see  post,  c.  9,  as  to 
connecting  carriers. 

2  Long  V.  Mobile  R.,  51  Ala.  512. 

8  For  carrying  mailable  matter  contrary  to  the  provisions  of  Con- 
gress, the  carrier  has  neither  right  of  action  nor  lien.  Hill  v.  Mitchell, 
25  Ga.  704.  As  to  a  carrier's  lien  on  goods  which  he  transports 
on  behalf  of  his  government,  see  Dufolt  v.  Gorman,  1  Minn.  301; 
Briggs  V.  Light-Boats,  11  Allen  (Mass.),  157;  The  Davis,  10  Wall. 
(U.  S.)  1.5. 

*  Travis  v.  Thompson,  37  Barb.  (X.  Y.)  230;  Marsh  v.  Union  Pacific 
R.,  3  McCr.  (U.  S.)  236. 

6  Adams  v.  Clark,  9  Cu.sh.  (Mass.)  215;  Leonard  v.  Winslow,  1  Grant 
Cas.  (Penn.)  139  ;  Pharr  v.  Collins,  35  La.  An.  939. 

«  Richardson  v.  Rich,  104  Mass.  156;  Steamboat  Virginia  v.  Kraft,  25 
Mo.  76;  Wiltshire  Iron  Co.  v.  Great  Western  R.,  L.  R.  6  Q.  B.  776; 
102  Fed.  (U.  S.)  358. 


270  THE   LAW   OF   BAILMENTS 

transit,  with  respect  to  the  property,  without  authority  from 
the  owner,  but  for  the  just  benefit  of  all  concerned.^ 

439.  But  the  carrier,  as  against  the  true  o'wiier,  has  no  lien  on 
goods  delivered  liim  for  transportation  by  a  wrong-doer  with- 
out such  owner's  express  or  implied  assent ;  and  this,  though 
he  carry  them  or  pay  back  charges  upon  them  innocently ; 
inasmuch  as  no  one  is  to  be  deprived  of  his  property  without 
his  consent.^  Nor  can  one  who  has  carried  a  thing  foi-  the 
sole  convenience  of  the  mere  hirer  thereof,  and  at  his  request, 
acquire  a  lien  upon  the  property  available  against  the  owner.^ 
And  while  it  must  be  generally  admitted  that  the  carrier's 
lien,  and  his  right  to  retain  possession,  prevail  as  against  the 
general  owner  until  his  reasonable  charges  be  paid  him,  the 
courts,  nevertheless,  rule  that  this  lien  and  right  of  possession 
are  so  far  personal  to  him  that  a  wrong-doer  who  has  acquired 
possession  cannot  set  up  any  such  defence  to  the  suit  of  the 
general  owner.^  But  where  the  owner  or  his  agent  was  at 
fault  in  procuring  transportation  to  some  point,  or  over  some 
route  not  intended,  tlie  carrier's  lien  is  good  for  his  own 
charges  and  those  advanced  by  him,  provided  they  be  rea- 
sonable and  incurred  in  good  faith.^ 

1  Hiiigston  V.  Wendt,  1  Q.  B.  D.  367  (rescue  of  cargo  with  a  cost  of 
salvage,  in  a  stress  of  weather  and  shipwreck,  where  the  carrier  was  not 
at  fault). 

2  §  544;  IG  Irish  C.  L.  405;  1  Doug.  (Mich.)  1 ;  Robinson  v.  Baker,  5 
Cush.  (Mass.)  137  ;  8  Gray  (Mass.),  262;  9  Gray,  231.  See  King  v. 
Richards,  6  Whart.  (Penn.)  418. 

8  Gilson  v.  Gwinn,  107  Mass.  126. 

All  this  would  seem  to  indicate  that  the  carrier,  in  respect  of  his  lien, 
is  less  favored  as  against  a  true  owner  than  the  innkeeper;  though 
whether  the  doctrine  of  this  case  would  apply  so  as  to  utterly  exclude  the 
carrier's  lien  upon  property  belonging  to  another,  which  the  passenger 
has  transported  as  part  of  his  own  baggage,  qucere.  A  strong  reason  for 
preferring  the  innkeeper  in  issues  like  this  might  be,  that  the  custody 
and  shelter  of  any  owner's  property  in  an  inn  can  hardly  fail  to  be  bene- 
ficial to  him,  wliile  transporting  it  to  a  distance  without  his  authority  is 
more  likely  an  aggravation  of  the  injury  occasioned  by  the  dispossession 
itself.     See  ante,  256;  and  see  72  Ga.  655. 

*  Ames  V.  Palmer,  42  Me.  197. 

6  Briggs  V.  Boston  &  Lowell  R.,  6  Allen  (Mass.),  246. 


GENERAL   RIGHTS   OF   COMMON   CARRIERS  271 

440.  Continuous  possession  is  necessary  in  order  to  pre- 
serve one's  lien  security;  hence  the  general  doctrine  of  liens 
requires  the  carrier  who  claims  its  benefit  to  retain  possession 
of  the  goods,  and  not  deliver  them  up  while  his  dues  remain 
unsatisfied.  An  unqualified  and  voluntary  delivery  to  the 
consignee  entitled  will,  as  a  rule,  discharge  the  lien,  if  the 
carrier  was  not  defrauded  into  making  it ;  ^  but  so  highly 
favored  is  the  bailee's  right  of  lien  as  to  particular  goods 
upon  wliicli  he  has  performed  an  unremunerated  and  bene- 
ficial service,  and  so  concomitant  must  be  the  acts  of  making 
delivery  at  the  end  of  a  transit  and  receiving  compensation 
for  the  carriage,  that  acts  of  incomplete  or  conditional  de- 
livery are  not,  by  the  leading  authorities,  deemed  decisive  of 
an  intention  to  waive  one's  convenient  right  of  lien  upon  the 
property.  Thus,  the  transfer  of  goods  from  a  vessel  to  the 
w^arehouse  should  be  considered,  if  the  terms  of  the  contract 
or  local  usage  can  justify  the  construction,  not  an  absolute 
delivery,  but  rather  a  deposit  for  the  time  being  in  the  ware- 
house, so  as  to  preserve  the  carriers  constructive  possession.^ 
The  discharge  of  a  cargo  on  a  wharf  with  notice  preserves  the 
lien.^  Again,  should  the  consignee  procure  a  delivery  of  the 
goods  to  himself  by  a  false  and  fraudulent  promise  to  pay 
the  freight  due  as  soon  as  they  are  received,  or  otherwise  gain 
their  possession  by  dishonest  stratagem  or  theft,  or  by  coercion 
of  the  carrier,  the  carrier's  lien  is  not  waived,  but  he  may  dis- 
affirm and  sue  the  consignee  in  replevin.*  And,  as  in  other 
cases  of  lien,  the  carrier  might  make  a  special  delivery,  as  for 
enabling  the  consignee  to  inspect  the  condition  of  the  prop- 
erty, or  to  put  it  in  repair,  without  impairing  his  right  to  hold 
it  for  security  of  the  transportation  charges,  except,  possibly, 

'  §  545  ;  Bigelow  v.  Heaton,  4  Den.  496 ;  3  T.  R.  119 ;  Sears  v.  Wills, 
4  Allen  (Mass.),  212  ;  Bowman  v.  Hilton,  11  Ohio,  303;  Bags  of  Linseed, 
1  Black  (U.  S.),  108;  51  Iowa,  338;  43  Fed.  (U.  S.)  480. 

2  Bags  of  Linseed,  1  Black  (U.  S.),  108;  Mors  Le  Blanch  v.  Wilson, 
L.  R.  8  C.  P.  227;  The  Bird  of  Paradise,  5  Wall.  545,  555;  (1894)  1  Q.  B 
483. 

»  The  Eddy,  5  W^all.  (U.  S.)  481. 

<  Bigelow  V.  Heaton,  6  Hill  (N.  Y.),  43. 


272  THE   LAW   OF   BAILMENTS 

as  against  intervening  bond  fide  third  parties  for  value,  with- 
out prior  notice  of  such  a  lien  claim.^  Where,  however,  his 
lien  has  once  been  utterly  waived  and  extinguished,  the 
carrier  cannot,  by  merely  regaining  possession  of  the  goods, 
enable  himself  to  reassert  it.^ 

441.  Nor  is  lien  lost  by  a  partial  delivery,  as  the  courts  in- 
cline to  rule.  Thus,  where  several  cargoes  or  instalments  of 
coal  are  successively  transported  for  one  owner,  and  portions 
thereof  carried  away  and  delivered  from  time  to  time  from 
the  carrier's  premises  at  the  place  of  destination,  the  presump- 
tion is  that  the  carrier  keeps  and  means  to  keep  his  lien  upon 
that  which  remains  for  the  freight  and  storage  of  all  the  car- 
goes or  instalments  togetlier.^  A  corresponding  presumption 
may  apply  to  partial  deliveries  made  for  a  customer  on  a 
round  trip.^  For  the  rule  is,  that  for  conveying  goods  the 
carrier  may  detain  the  whole  or  a  part  of  the  goods  until 
the  freight  on  all  is  paid.^  Whether  the  mutual  intent  of  the 
parties  was  to  discharge  the  lien,  under  such  circumstances, 
contrary  to  presumption,  a  jury  must  determine.^ 

442.  Total  delivery  with  a  reservation  is  sometimes  con- 
sidered. Following  out  the  principle  which  applies  as  between 
vendor  and  vendee,  we  might,  perhaps,  conclude  that  the 
carrier  has  the  right  to  deliver  the  goods  fully  upon  an  ex- 
press or  implied  condition  that  his  lien  shall  not  be  divested 
until  his  charges  are  fully  paid ;  ^  though  it  blunts  the  edge 
of  the  law  to  infer  qualifications  of  this  character  in  favor 
of  parties  who  have  totally  surrendered  actual  possession 
without  clearly  expressing  by  writing  or  otherwise  what 
rights    tliey    mean    to    reserve ;    and   superior   equities   may 

1  See  1  Schoul.  Pers.  Prop.  §  385 ;  ante,  100. 

^  lb. ;  Lien  lost  by  carrier's  assignment,  175  Mo.  518. 

3  §  441;  Lane  v.  Old  Colony  R.,  14  Gray  (Mass.),  143.  And  see  14 
BlatcM.  (U.  S.)  274. 

*  Fuller  V.  Bradley,  25  Penn.  St.  120. 

6  Boggs  V.  Martin,  13  B.  Mon.  (Ky.)  230;  91  Ga.  630;  §  441. 

6  New  Haven  Co.  v.  Campbell,  128  Mass.  104. 

1  Hoar,  J.,  ill  Lane  v.  Old  Colony  R.,  14  Gray  (Mass.),  143,  148;  The 
Eddy,  5  Wall.  (U.  S.)  48L 


GENERAL   RIGHTS   OF   COMMON   CARRIERS  273 

certainly  arise  in  favor  of  third  parties  where  the  carrier  has 
so  surrendered.^ 

443.  Special  agreement  may  be  shown :  and  the  parties  to  a 
carriage  undertaking  may  frame  tlieir  contract  so  as  to  affirm 
the  existence  of  the  hen,  or  so  as  to  extend  or  modify  it,  or 
even  to  exclude  it  altogether ;  and  on  this  point  the  language 
of  a  bill  of  lading,  way-bill,  or  other  like  document,  or  the 
charter-party  of  a  vessel,  may  be  found  conclusive.^  And 
while  the  presumption  must  be  in  favor  of  the  carrier's  lien, 
and  his  intention,  if  need  be,  to  exercise  such  a  right,  this 
presumption  may  be  overcome  by  a  direct  exclusion  of  the 
right  in  the  contract  of  carriage,  or  by  the  insertion  of  some 
stipulation  which  is  wholly  incompatible  with  its  existence. 
To  stipulate  that  credit  shall  be  given  for  the  consignee's  dues 
would  be  inconsistent  with  such  a  right ;  or,  again,  to  stipu- 
late that  the  goods  shall  be  unconditionally  delivered  before 
the  freight  is  paid.^  But  where  language  somewhat  ambiguous 
is  employed,  justice  requires  that  the  carrier  should  receive 
the  benefit  of  the  doubt ;  and  hence  language  importing  that 
the  payment  or  adjustment  of  the  carriage  dues  shall  be  con- 
current or  simulfameous  with  the  delivery  of  the  goods,  or,  at 
all  events,  leaving  the  dut}"  of  making  a  delivery  antecedent 
to  such  payment  or  adjustment  in  doubt,  is  not  to  be  construed 
into  a  stipulation  for  displacing  the  carrier's  lien.*  Even  a 
stipulation  which  amounts  to  giving  the  consignor  or  customer 
a  slight  credit  may  be  controlled  where  the  general  language 
used  imports  an  intention  to  claim  the  usual  right  of  lien ; 
though  credit  miglit  be  promised  for  so  long  a  period  as  to 
justify  the  inference  tliat  the  lien  was  not  to  attach,  but  that 
the  personal  responsibility  of  the  customer  was  trusted.^    Ques- 

1  §  547. 

2  §  548;  5  M.  &  S.  180;  Finney  v.  Wells,  10  Conn.  101;  McLean  v. 
Fleming,  L.  H.  2  H.  L.  Sc.  128;  Kirchner  v.  Venus,  12  Moore  P.  C.  3G1. 

3  The  Bird  of  Paradise,  5  Wall.  (U.  S.)  545,  556. 

*  See  1  Sumn.  (U.  S.)  571  ;  2  Sumn.  (U.  S.)  600;  U  M.  &  AV.  798; 
Tainvaco  v.  Simpson,  L.  R.  1  C.  P.  371 ;  Paynter  v.  James,  L.  R.  2  C. 
P.  348. 

5  The  Kimball,  3  Wall.  (U.  S.)  42. 

18 


274  THE   LAW   OF   BAILMENTS 

tions  of  this  character,  however,  arise  more  particularly  with 
reference  to  water  than  land  carriage.^ 

444.  A  right  of  lien  for  unpaid  instalments  of  freight  or  recom- 
pense may  exist  by  virtue  of  the  arrangement  made  for  paj-ing 
or  adjusting  the  freight  to  tlie  carrier.  Problems  of  this  cliar- 
acter  are  very  intricate  for  solution ;  but  tlie  better  opinion 
appears  to  be  that  when  an  acceptance  for  freight  or  an  in- 
stalment thereof  is  overdue  and  unpaid,  this,  even  though  it 
were  given  for  an  instalment  payable  in  advance,  leaves  the 
carrier  free  to  stand  upon  his  lien  light,  unless  he  has  clearly 
waived  it ;  since  a  bill  of  exchange  or  promissory  note  does 
not  extinguish  or  operate  as  payment  of  a  debt  unless  the 
parties  have  so  expressly  agreed.^  But  sums  stipulated  to 
be  paid  in  advance,  and  not  dependent  on  the  cariier's  con- 
tract, have  not  the  incidents  of  freight,  and  are  not,  unless 
by  virtue  of  usage  or  special  contract,  protected  by  the  car- 
rier's lien.3  Notwithstanding  one  instalment  of  the  stipulated 
freight  has  been  paid  on  arrival,  and  the  balance  is  made  ex- 

^  §  548.  In  AVestrainster  Hall  and  the  Supreme  Court  of  the  United 
States,  where  the  mutual  binding  of  the  ship  and  cargo  for  carriage  dues 
under  a  charter  of  affreightment  has  proved  an  exceedingly  interesting 
question,  the  manifest  inclination  has  been  in  favor  of  the  doctrine  that 
while  lien  for  freight,  which  is  a  common-law  right,  may  be  mutually  dis- 
placed or  waiv'ed  by  special  stipulations  of  carriage  inconsistent  with  and 
destructive  of  it,  this  displacement  or  waiver  is  not  shown,  but  the  right 
remains,  unless  the  special  agreement  is  absolutely  inconsistent  with  the 
retention  of  the  goods  for  lien  security.  See  The  Bird  of  Paradise,  5 
Wall.  (U.  S.)  545,  558;  3  H.  &  N.  715;  15  East,  554;  Kirchner  v.  Venus, 
12  Moore  P.  C.  361,  and  cases  cited;  Howard  v.  iMacondray,  7  Gray 
(Mass),  510;  Pinney  v.  Wells,  10  Conn.  104.  But  it  is  often  a  matter 
of  nice  construction  to  determine  whether  the  terms  of  commercial  con- 
tracts exclude  the  lien  riglit  or  not.  In  England,  where  such  cases  more 
connnonly  arise,  12  Moore  P.  C.  361,  militates  against,  2  C.  B.  n.  s.  134, 
and  Neish  v.  Graham,  8  E.  &  B.  505.  See  also,  as  to  the  sea  carrier's 
claim  of  lien  for  "dead  freight,"  5  il.  &  X.  931  ;  L.  R.  1  C.  P.  G89;  L. 
R.  6  Q.  B.  522. 

2  §  549;  Steamer  St.  Lawrence,  1  Black  (U.  S.),  533;  The  Kimball,  3 
Wall.  (U.  S.)  37,  45. 

3  The  Bird  of  Paradise,  5  Wall.  (U.  S.)  545,  562,  How  i;.  Kirchner, 
11  Moore  P.  C.  21. 


GENERAL   RIGHTS   OF   COMMON   CARRIERS  275 

pressly  payable  on  delivery  of  the  goods,  the  presumption 
of  intention  favored  would  be  that  delivery  and  payment 
are  concuri'ent  acts,  so  as  to  leave  the  carrier's  lien  riofht 
unimpaired.  ^ 

445.  "Where  the  damage  done  to  the  goods  exceeds  the 
proper  recompense  for  carrying  them,  and  the  carrier  is  cul- 
pable for  sLich  damage,  his  lien  is  displaced,  inasmuch  as  he 
owes  indemnity .2 

446.  The  legal  effect  of  the  carrier's  lien  is,  that  he  may  re- 
tain the  goods  and  suspend  delivery  thereof  until  his  com- 
pensation and  rightful  charges  for  their  transportation  are 
properly  adjusted  ;  and  if  the  hen  be  upon  merchandise  carried 
on  the  high  seas,  the  carrier  may  enforce  it  by  proceedings 
ill  rem.^  But  no  carrier  has  a  right  by  virtue  of  a  lien  — 
which,  in  common  law,  is  practically  only  a  right  of  detainer  ■ 
—  to  sell  the  goods  as  of  his  own  motion,  and  so  reimburse 
himself ;  nor  would  he,  by  such  sale,  confer  title  upon  another 
more  than  could  any  wrong-doer.*  This  hardship  has,  in  some 
measure,  been  rectified  by  local  legislation,  which  provides, 
to  a  considerable  extent,  that  unclaimed  property  in  the  hands 
of  certain  carriers,  such  as  railways  or  express  companies,  or, 
more  generally,  that  goods  transported  by  steam  or  sailing 
vessels,  or  other  specified  carriers,  may  be  sold  to  pay  the  car- 
riage charges;  and,  moreover,  directs  how  the  sale  shall  be 
conducted  and  the  proceeds  applied.^  And  since  the  carrier, 
with  property  left  on  his  hands,  in  an  emergency,  is  a  sort  of 
trustee  for  the  rightful  owner  or  party  in  interest,  he  may,  on 
such  a  consideration,  though  not  by  right  of  the  lien,  make  a 
fair  and  open  sale  of  the  property  where  the  goods  are  perish- 
able, or  other  extreme  occasion  occurs  for  prompt  and  decisive 
action  on  his  own  responsibility,  and,  deducting  his  freight 

1  Paynter  v.  James,  L.  R.  2  C.  P.  348. 

2  See  Miami  Co.  v.  Port  Royal  R.,  .38  S.  C.  78. 

3  The  Bird  of  Paradise,  5  Wall.  (U.  S.)  54.5,  555. 

4  §  550;  Lecky  «•.  McDermott,  8  S  &  R.  (Penn.)  500;  Briggs  v.  Boston 
&  Lowell  R.,  6  Allen  (Mass.),  246;  24  Me.  339;  Sullivan  v.  Park,  33  Me. 
438;  Indianapolis  R.  v.  Herndon,  81  111.  143. 

5  §  550.     Aud  see  ante,  399. 


276  THE   LAW   OF   BAILMENTS 

and  charges  out  of  the  proceeds,  retain  the  balance  for  dis- 
position according  to  law ;  ^  but,  so  perilous  must  be  such  a 
course  on  his  part,  it  is  very  doubtful  whether  the  carrier  is 
under  any  obligation,  after  fultilling  his  contract  of  transpor- 
tation, to  make  such  sale  at  all.^  Under  all  circumstances 
the  carrier's  sale  should  be  openly  and  fairly  conducted,  with 
a  just  regard  to  the  owner's  interest.^ 

447.  Independently  of  any  lien  security,  a  cari'ier  may,  after 
relinquishing  possession  of  the  property  transported,  bring  his 
action  at  law  to  recover  his  rightful  compensation ;  unless, 
indeed,  he  has  stood  upon  his  legal  right  of  claiming  pay  in 
advance.  The  principles  here  applicable  have  already  been 
incidentally  set  forth  and  the  rule  applies  generally.* 

448.  Payment  of  the  transportation  dues  and  delivery  of  the 
goods  are  concomitant  or  concurrent  acts  ;  so  that  neither  con- 
signor nor  carrier  is  obliged  to  perform  on  his  part  until  the 
other  is  ready  to  perform  the  correlative  duty.^  And  under 
the  ordinary  bill  of  lading,  given  for  carriage  by  water,  freight 
is  demandable  only  when  the  goods  are  discharged  from  the 
vessel,  and  the  party  to  whom  deUvery  is  owed  has  reasonable 
opportunity  to  examine  into  their  condition ;  while,  on  the 
other  hand,  the  cai'rier  is  under  no  obligation  to  part  with 
possession  of  the  goods,  or  make  actual  delivery,  except  upon 

1  Rankin  v.  Memphis  Packet  Co.,  9  Heisk.  (Tenn.)  5G4 ;  2  Story 
(U.  S.),  81,  97.  By  virtue  of  his  special  undertaking,  the  carrier  is  some- 
times empowered  to  make  sale  of  the  goods  at  the  place  of  destination,  — 
in  other  words,  he  is  both  carrier  and  factor  for  his  customer ;  but  this 
is  quite  a  different  case. 

2  §  650;  Rapp  v.  Palmer,  3  Watts  (Penn.)  178.  Queers,  whether  a 
special  contract  of  the  parties  may  give  the  carrier  a  power  to  sell. 
Sayvvard  v.  Stevens,  3  Gray  (Mass.),  97,  105.  The  provision  of  a  bill 
of  lading  to  this  effect,  even  if  assented  to  by  the  consignor,  does 
not  necessarily  conclude  the  consignee  and  all  other  possible  parties 
in  interest. 

8  See  Nathan  v.  Shivers,  71  Ala.  117. 

*  §  551;  ante,  430,  431.  As  to  the  carrier's  recompense  by  way  of 
offset  in  a  suit  against  him  for  damages,  see  post. 

5  Tate  V.  Meek,  8  Taunt.  280;  Adams  v.  Clark,  9  Cush.  (Mass.)  215; 
Long  V.  Mobile  R.,  51  Ala.  512;  1  Bosw.  (N.  Y.)  177,  185  ;  §  552. 


GENERAL  RIGHTS   OF   COMMON   CARRIERS  277 

payment  or  tender  of  his  lawful  clues. ^  A  consignee  may 
test  the  goods  reasonably  ;  but  his  opportunity  to  inspect 
does  not  empower  him  to  insist  upon  unreasonable  or  useless 
tests. 

449.  "When,  therefore,  the  party  to  whom  the  goods  were  to 
be  delivered  offers  to  pay  the  freight  and  charges  rightfully 
due,  the  carrier's  refusal  to  deliver  them  is  a  breach  of  his 
contract  duty,  for  which  an  action  of  assumpsit  will  lie  :  and 
all  that  the  consignee  need  aver  and  prove,  in  support  of  such 
action,  is  his  readiness  to  pay  the  freight,  the  demand  of  the 
goods,  and  the  carrier's  refusal  to  make  dehver3\^  Indeed, 
where  the  carrier's  non-delivery  is  clearly  wrongful,  as,  for 
instance,  where  he  refuses  to  give  the  property  up,  except  on 
payment  of  that  which  the  lien  does  not  protect,  or  the  ful- 
filment of  a  condition  wliich  he  has  no  right  to  impose,  trover 
may  be  brought  against  him  instead,  with  a  suitable  averment 
on  the  plaintiff's  part.^  Replevin  of  the  goods  also  lies,  as 
modern  authorities  hold,  for  the  carrier's  wrongful  refusal  to 
give  them  up,  and  this  to  the  forfeiture,  it  may  be,  both  of 
his  lien  and  compensation  for  freight ;  *  and  wliere  the  carrier 
has,  by  his  delay  in  transporting  and  making  delivery  of  the 
goods,  injured  the  consignee  to  an  amount  equal  to  the  freight 
charges,  it  is  held  that  the  consignee  may  maintain  replevin 
for  the  goods,  without  paying  or  tendering  the  freight.^  But, 
in  general,  to  enable  the  consignee  to  sue  the  carrier  for  with- 
holding delivery  of  the  goods,  he  must  tender  the  freight ;  nor 
should  the  carrier's  request  for  reasonable  time  to  ascertain 
and  verify,  especially  on  a  long,  continuous  line,  what  freight 

1  See  Vitrified  Pipes,  in  re,  U  Blatchf.  (U.  S.)  274;  Black  v.  Rose,  2 
Moore,  n.  s.  277;  Lanata  v.  Ship  Henry  Griiinell,  13  La.  An.  24. 

2  2  Saund.  352  n.  3;  Porter  v.  Rose,  12  Johns.  (X.  Y.)  209;  Long  v. 
Mobile  R.,  51  Ala.  512,  513;  9  Gush.  (Mass.)  215. 

?  Ih.;  Marsh  v.  Union  Pacific  11.,  3  McCr.  (U.  S.)236;  Richardson 
V.  Rich,  104  Mass.  150. 

*  Cutting  c.  Grand  Trunk  R.,  13  Allen  (Mass.),  381;  Iluinphreys  c. 
Reed,  6  Whart.  (Penn.)  435;  Boston  R.  v.  Brown,  15  Gray  (Mass.),  223  ; 
Dyer  v.  Grand  Trunk  R.,  42  Vt.  441.     And  see  next  chapter. 

8  Dyer  v.  Grand  Trunk  R.,  42  Vt.  441.  And  see  Hall  v.  Cheney,  36 
X.  H.  26  ;  Alden  v.  Pearson,  3  Gray  (Mass.),  342. 


278  THE   LAW   OF   BAILMENTS 

may  be  lawfully  due,  be  necessarily  construed  into  an  absolute 
refusal  on  his  part  to  perform  his  duty.^ 

450.  The  rights  of  carrier  and  consignee  are  mutual,  in  SUch  a 
connection;  and  hence  it  follows  that,  since  no  consignee  is 
bound  to  pay  freight  until  the  goods  are  delivered,  or  offered 
for  delivery,  independently  of  an  express  contract  to  do  so,  the 
carrier  cannot  sue  such  a  party  for  his  freight  until  he  has  at 
least  tendered  the  goods.  And  where  a  carrier  by  vessel  stands 
upon  his  legal  right  not  to  deliver  the  cargo,  or  any  part  of  it, 
until  his  freight  is  paid,  and  the  consignee  of  the  cargo  stands 
upon  his  right  not  to  pay  freight  until  the  cargo  is  discharged, 
ready  to  be  completely  delivered,  neither  is  in  a  position  to  sua 
the  other.2 

451.  Goods  shipped  as  entire  are  not  to  be  treated  as  though 
in  portions.  Neither  carrier  nor  consignee  can  require,  as  of 
right,  that  goods  under  one  bill  of  lading  sliall  be  delivered  in 
parcels,  on  a  separate  payment  of  freight  for  each  parcel.^  Nor 
where  a  shipment  is  landed  in  parts,  can  freight  upon  the  whole 
shipment  be  demanded  upon  a  part  delivery.*  The  delivery 
of  part  of  a  consignment  does  not  operate  as  a  delivery  of  the 
whole  .^ 

1  §  552. 

2  $  553;  14  Blatchf.  (U.  S.)  274;  1  Bosw.  (N.  Y.)  177,  185;  60  Mich. 
56;  jNIcCullough  v.  Hellweg.  66  Md.  269.  The  assignee  of  a  bill  of  lad- 
ing  may  have  the  cargo  weighed  and  examined  to  verify  quantity  and 
quality.  But  he  cannot  require  a  delivery  without  paying  freight,  nor 
insist  upon  unreasonable  methods  of  weighing.  1  Sprague  (TJ.  S.),  473. 
Vexatious  conduct  in  this  respect  may  be  construed  into  a  refusal  to  accept 
delivery.  lb.  And  a  tender  of  the  cargo  to  the  consignee,  though  not 
formal,  may  be  sufficient  where  the  consignee  refuses  unjustifiably  to  re- 
ceive it,  and  a  reasonable  time  is  given  him  to  accept.  1  Fed.  (U.  S.) 
619.  Subsequent  landing  of  the  cargo  is  not  sufficient  after  a  refusal  to 
deliver  ;  but  notice  of  such  landing  should  be  given  to  the  consignee  or  a 
subsequent  demand,     li  Blatchf.  (U.  S.)  274;  66  Md.  269. 

3  14  Blatchf.  (U.  S.)  274.     And  see  Paynter  v.  James,  L.  R.  2  C.  P.  348. 
.  *  Brittan  v.  Barnaby,  21  How.  (U.  S.)  527. 

«  Jeffris  V.  Fitchburg  K.,  93  Wis.  250;  §  554. 


CHAPTER  VIII. 

REMEDIES  AGAINST  COMMON  CARRIERS. 

452.  The  customer  has  usually  the  disadvantage,  in  a  suit 
against  the  carrier,  since  the  latter  stands  commonly  upon  his 
possession  and  lien  right  for  his  own  indemnity,  without  taking 
further  initiative.  Three  leading  causes  of  action  are  recog- 
nized in  favor  of  the  customer  as  against  the  common  carrier: 
I.  For  inexcusably  refusing  to  receive  goods  offered  him  for 
transportation.  II.  For  transporting  them,  or  accomplishing 
the  bailment  purpose,  so  that  they  become  inexcusably  lost  or 
injured.  III.  For  his  negligence  or  misconduct  in  delivering 
them  over,  after  his  transit  is  completed.^ 

453.  I.  Where  the  common  carrier  inexcusably  refuses  to  receive 
goods  offered  him  for  transportation.  The  obligation  of  the 
carrier,  in  this  respect,  with  its  true  limitations,  has  already 
been  sufficiently  considered.  ^  The  usual  form  of  common-law 
action  against  the  carrier,  for  such  refusal,  is  case ;  and  the 
plaintiff  should  aver  that  he  was  ready  and  willing  to  pay  the 
defendant  the  amount  such  party  was  legally  entitled  to  receive 
for  receiving  and  carrying  the  goods  in  question ;  an  absolute 
tender  of  recompense  not  being,  under  these  circumstances,  an 
indispensable  prerequisite  to  maintaining  one's  suit.  ^  The 
consignor   or  owner  whose  property  is   inexcusably  refused 

1  §§  555,  556. 

"^  Ante,  291  et  seq. 

8  Pickfoid  V.  Grand  Junction  R,  8  M.  &  W.  372;  11  Ex.  742,  758; 
Galena  R.  v.  Rae,  18  111.  488;  iMcGill  r.  Rowand,  3  Penn.  St.  451 ;  Fitch 
V.  Newberry,  1  Dougl.  (Mich.)  1 ;  New  Jersey  Steam  Nav.  Co.  v.  Mer- 
chants Bank,  6  How.  (U.  S.)  344;  Pittsburgh  R.  v.  Morton,  61  Ind.  539. 
And  see,  as  to  the  right  to  sue  the  carrier  for  discriminating  unjustly  in 
favor  of  certain  customers,  §  374.  Where  the  refusal  to  carry  alleged 
other  reasons  than  non-payment,  a  tender  of  freight  money  need  not  be 
averred.     08  Tex.  49. 


280  THE  LAW  OF  BAILMENTS 

transportation  is  the  proper  party  to  sue  the  carrier  on  such  a 
grievance,  rather  than  any  mere  consignee.^  In  general  cases 
where  the  breach  of  a  duty  toward  the  whole  public  is  incurred, 
special  remedies  such  as  mandamus  will  lie ;  though  not  usually 
where  the  injured  party  has  another,  specific  and  adequate, 
under  tlie  common  law.'^ 

454.  II.  "Where  transportation  or  the  accomplishment  of  the 
bailment  purpose  is  such  that  the  goods  become  inexcusably 
lost  or  injured.  In  this  instance  of  surpassing  importance  it 
is  a  matter  of  regret  that  our  law  should  not,  in  all  points, 
make  the  bailment  remedies  clear  and  certain,  more  than  the 
bailment  rights.  These  remedies  we  shall,  however,  proceed 
to  state  with  as  much  precision  as  the  nature  of  the  case 
admits. 

455.  (1)  Concerning  the  form  of  action,  this,  at  common  law, 
may  be  ex  delicto  or  ex  contractu.  So  long  as  the  common- 
carriage  occupation  was  considered  simply  as  a  public  duty,  its 
breach  was  deemed  tortious,  and  the  carrier  Avas  suable  in  an 
action  on  the  case  founded  upon  the  custom  of  the  realm  ;  but 
when  contract  began  to  assuage  the  rigor  of  public  policy,  it 
became  established  that  the  carrier  should  be  held  liable  in  as- 
sumpsit on  his  undertaking;  and  hence  the  modern  usage  to 
lay  hold  of  the  advantages  of  tlie  action  ex  contractu,  while 
preserving  those  likewise  of  that  more  ancient  remedy  against 
carriers,  ex  delicto.,  which  the  practice  of  earlier  centuries  com- 
mended.^    Where  the  transaction  and  the  character  of  the  loss 


1  Lafaye  v.  Harris,  13  La.  An.  553  ;  ante,  292.  Where  one  sues  for  the 
carrier's  refusal  to  transport  goods  tendered  him,  the  measure  of  damages 
is  the  difference  between  the  value  of  the  property  at  the  place  of  tender 
and  its  value  at  the  desired  destination,  less  expenses  of  transporting.  22 
Hun  (N.  Y),  533;  Taney  (U.  S.),  485;  Galena  11.  v.  Rae,  18  III.  488. 
See  also,  as  to  damages,  Houston  R.  v.  Smith,  63  Tex.  322. 

2  See  ante,  292.  Injunction  to  prevent  discrimination  is  sometimes 
permitted.  27  Fed.  (U.  S.)  529.  Or  injunction  to  compel  the  perform- 
ance of  a  public  obligation.     34  Fed.  (U.  S.)  481. 

8  §§  557,  558;  1  Wils.  282  (1750),  per  Deunison,  J. ;  Tattan  v.  Great 
Western  R.,  2  E.  &  E.  844 ;  Baylis  v.  Lintott,  L.  R.  8  C.  P.  345;  Orange 
Bank  v.  Brown,  3  Wend.  (N.  Y.)  158  ;  Smith  v.  Seward,  3  Penn.  St.  342; 


REMEDIES  AGAINST  COMMON  CARRIERS  281 

require  the  plaintiff  to  show  in  variance  of  the  common-law 
liability,  a  contract,  express  or  implied,  with  the  carrier,  to 
support  his  action,  contract  is  the  true  remedy;  otherwise,  the 
preferable  form  of  action  is  tort.  And  in  case  of  a  special 
contract,  especially  a  written  one,  action  should  be  brought  on 
that  contract  and  not  upon  an  implied  one.^ 

456.  The  action  ex  delicto,  which  ma}'  be  safely  brought  as 
an  action  on  the  case  where  one  seeks  to  charge  the  carrier  on 
a  simple  breach  of  duty  depending  on  the  common  law  and 
public  policy,  or  on  some  other  tort  or  misfeasance,  has  this 
advantage,  that,  if  it  be  uncertain  whether  some  or  all  of  cer- 
tain parties  are  liable,  the  plaintiff  may  recover  against  aU  who 
are  liable,  while  the  rest  go  free,  since  the  action  itself  is  sev- 
eral and  not  joint ;  whereas  one  who  sues  in  assumpsit  must 
prove  the  liability  of  all  against  whom  he  brings  his  suit.^ 
And,  further,  in  respect  of  non-joinder  or  misjoinder,  where 

School  District  v.  Boston,  &c.  R.,  102  Mass.  552  ;  Baltimore  R.  v.  Pum- 
phrey,  59  ISId.  390. 

The  above  cases  concede  to  the  aggrieved  party  quite  a  free  choice  of 
remedies  against  a  defaulting  carrier,  as  between  the  action  ex  delicto  and 
the  action  ex  contractu,  unless  it  is  incumbent  upon  him  to  show  some 
special  contract,  express  or  implied  ;  and  this,  though  there  be  in  reality 
a  privity  of  contract  between  tlie  parties. 

But  in  England  (where  the  clioice  of  action  in  this  respect  may  affect 
the  question  of  costs  as  limited  and  prescribed  by  statute)  the  disposition 
appears  manifested  to  narrow  the  plaintiff's  election  if  possible.  See 
Baylis  v.  Lintott,  L.  R.  8  C.  P.  345  (hackney  coach  carelessly  carrying 
baggage  and  losing  it),  which  was  held  to  set  forth  a  cause  of  action 
founded  in  contract.  In  Tattan  v.  Great  Western  R.,  2  E.  &  E.  844,  a 
form  of  declaration  somewhat  similar  was  considered  to  amount  to  case 
and  not  contract.  But  Cockburn,  C.  J.,  in  that  case  expressed  his  regret 
at  the  anomalous  state  of  the  law,  by  which  an  option  was  given  to  the 
plaintiff  to  sue  in  either  form.  In  Baylis  v.  Lintott,  the  remarks  of  Bovill, 
C.  J.,  indicate  a  similar  regret,  and  the  opinion,  besides,  that  -where  the 
cause  of  action  alleged  is  not  founded  wholly  on  the  breach  of  dutv,  but 
the  declaration  sets  forth  in  substance  a  promise  and  consideration,  this 
must  be  considered  to  amount  to  contract  and  not  tort. 

1  Knight  V.  St.  Louis  R.,  141  111.  110  ;  Boaz  v.  Central  R.,  87  Ga.  463. 

2  §  559  ;  3  Brod.  &  B.  54  ;  Tattan  v.  Great  Western  R.,  2  E.  &  E.  844  ; 
Pozzi  r.  Shipton,  1  P.  &  D.  4  ;  Smith  v.  Seward,  3  Penn.  St.  342 ;  Lake 
Shore  R.  v.  Bennett,  89  Ind.  457. 


282  THE   LAW   OF   BAILMENTS 

the  form  of  action  is  in  delicto^  the  defendant  carrier,  cannot  set 
lip  in  abatement  that  he  is  one  of  several  part-owners  of  a  ship, 
or  co-proprietors  in  a  land  carriage,  and  that  the  other  part- 
owners  or  co-proprietors  are  not  joined  as  parties  in  tlie  suit.^ 
Still  another  adv^antage  of  this  form  of  action  is,  that  the  duty 
of  the  carrier  in  the  premises  need  not  be  set  out  in  the  plead- 
ings, nor  proved,  with  as  much  particularity  as  would  be  requi- 
site were  the  suit  brought  on  a  carrier's  contract  undertaking. 
For  it  is  enough  that  the  proof  conforms  substantially  to  the 
statements  in  the  declaration,  and  that  the  declaration,  without 
alleging  any  promise  on  the  carrier's  part,  states,  by  way  of 
inducement,  that  defendant  is  a  common  carrier,  and  that  cer- 
tain goods  and  chattels  were  delivered  him,  to  be  carried  from 
A  to  B  for  a  certain  reasonable  reward ;  and  assigning,  as 
injury,  that  the  defendant  carelessly  and  negligently  behaved, 
so  that  the  goods  and  chattels  were  lost.^ 

457.  A  count  in  trover  may  be  added  to  the  other  count  when 
declaring  in  an  action  on  the  case  against  a  carrier;  which, 
too,  is  sometimes  advantageous  to  the  party  who  brings  a  suit. 
And  this  practice  is  permissible  wherever  there  may  be  the 
same  judgment  applicable  to  both  counts,  notwithstanding  the 
plea  be  a  different  one.^  Conversion  imports,  however,  a  wrong 
more  transcendent  than  the  mere  negligent  omission  of  an  act 
which  the  carrier  owed,  or  even  his  careless  and  neghgent  per- 
formance of  duty  ;  for  by  conversion  one  fundamentally  deals 
with  another's  property  without  right  as  though  it  were  his 
own  ;*  and  our  previous  discussion  of  the  law  of  bailments 
shows  that  a  bailee  renders  himself  liable  in  trover  where  he, 
without  permission,  undertakes  to  sell,  pledge,  give  away,  or 
otherwise  misappropriate  the  property  which  has  been  confided 
to  his  keeping.     But,  in  a  more  technical  sense,  and  with  less 

1  Ih. ;  Orange  Bank  v.  Brown,  3  Wend.  (X.  Y.)  158. 

2  See  1  Chit.  PI.  248  ;  §  559. 

8  2  Wils.  319  ;  Govett  v.  Radnidge,  3  East,  02,  09  ;  Hawkins  t;.  Hoff- 
man, 0  Hill  (N.  Y.),  586  ;  Dwight  v.  Brewster,  1  Pick.  (Mass.)  50;  Pack- 
ard !'.  Getman,  0  Cow.  (N.  Y.)  757;  Johnson  v.  Strader,  3  Mo.  359; 
Bullard  v.  Y'oung,  3  Stew.  (Ala.)  46. 

*  lb.;  %  560;  Bowlin  r.  Nye,  10  Cush.  (Mass.)  416. 


REMEDIES   AGAINST   COMMON   CARRIERS  283 

reference  to  the  wilful  conduct  of  the  bailee,  trover  against  a 
carrier  will  be  supported  by  proof  that  the  carrier  or  his  ser- 
vant misdelivered  the  goods,  though  this  were  by  mistake,  by 
a  delivery  to  the  wrong  person ;  ^  or,  as  one  might  reasonably 
add,  that  he  delivered  to  the  right  person,  in  violation  of  the 
conditions  imposed  upon  such  delivery .^  In  order  to  maintain 
trover  as  for  conversion  against  a  common  carrier,  a  demand 
is  needful  wherever  the  fact  of  conversion  is  not  decisive ;  so 
that  the  converting  intent  and  behavior,  as  thus  fixed  upon  the 
party,  may  be  established  in  legal  proof ;  for  trover  cannot  be 
sustained  without  some  proof  of  conversion.  But  formal  de- 
mand is  dispensed  with  where  such  demand  wouLl  be  useless, 
and  the  fact  of  conversion  is  clearly  enough  shown,  independ- 
ent of  such  formality ;  as  where  the  carrier  has  already  trans- 
ferred the  thing  to  some  part}',  as  he  had  no  authority  to  do, 
or  where  the  property  has  been  actually  lost  or  destroyed  by 
him  ;  ^  or  where  he  refuses  to  deliver,  except  upon  payment  of 
charges  which  he  has  no  right  to  claim,  or  on  some  other  con- 
dition which  he  cannot  lawfully  exact.*  In  certain  instances, 
a  clearly  tortious  refusal  may  establish  conversion  against  the 
carrier,  even  where  the  demand  upon  him  was  irregular.^  And 
if  the  carrier  has  sold  the  goods  and  retains  the  proceeds, 
whether  a  demand  be  needful  or  not,  before  an  action  of  as- 
sumpsit can  be  maintained  against  him  for  such  proceeds,  the 

1  Ante,  o92 ;  Devereux  v.  Barclay,  2  B.  &  Aid.  702  ;  Claflin  v.  Boston 
&  Lowell  R.,  7  Allen  (Mass.),  3tl. 

2  See  jM array  v.  Warner,  55  X.  H  5i6,  550,  where  goods  were  delivered 
to  a  carrier,  "  C.  O.  U.,"for  collection  on  delivery,  and  he  delivered  tliem 
to  the  consis^nee  withont  payment.  This  was  an  action  of  case  with  a 
count  in  trover.  See  also  Pontifex  v.  Midland  R  ,  25  W.  R.  215,  as  to 
delivery  to  a  consignee  after  notice  of  stoppage  in  transitu.  And  see 
Trowell  c.  Youmans,  5  Strobh.  (S.  C.)  67. 

8  Alden  v.  Pearson,  3  Gray  (Mass.),  342. 

*Ante,H9:,  Adams  r.  Clark,  9  Cash.  (Mass.)  215;  Richardson  v. 
Rich,  101  Mass.  156  ;  Long  v.  Mobile  R.,  51  Ala.  512. 

See  ante,  450,  as  to  the  requirement  of  a  tender  of  freight  where  one  sues 
as  for  non-delivery  of  the  goods ;  payment  and  delivery  being  concomi- 
tant acts. 

5  Marine  Rank  v.  Fiske,  71  N.  Y.  353. 


284  THE  LAW   OF   BAILMENTS 

carrier's  own  action  against  such  plaintiff,  to  recover  a  balance 
due  for  freight,  is  held  a  suflicient  refusal  to  enable  the  latter 
to  sue  without  making  a  demand.^  Demand  and  refusal  do 
not,  of  course,  conclude  a  carrier  guilty  of  conversion,  but 
serve  only  as  evidence  in  an  issue  otlierwise  open  to  explana- 
tion ;  and,  if  it  prove  that  the  carrier  lost  or  injured  the  goods 
by  his  mere  negligence  or  default,  this  supports  the  count  of 
case,  but  not  that  of  trover.^ 

458.  Where,  however,  the  remedy  against  the  common  carrier 
is  ex  contractu,  assumpsit  is  tlie  regular  form  of  action,  this 
being  applicable  generally  to  all  contracts  not  under  seal  whose 
breach  is  alleged,  whether  the  promise  was  express  or  only 
implied.  It  is  manifest  that,  by  thus  relying  upon  an  under- 
taking rather  than  a  duty  imposed  by  public  authority  or 
custom  of  the  realm,  the  plaintiff  takes  a  far  more  extensive 
range  of  our  modern  common-carrier  law  than  he  could  by 
suing  ex  delicto,  and  may  well  cover  those  constantly  occur- 
ring instauces  where  the  liability  which  furnishes  a  cause  of 
action  against  the  carrier  is  found  qualified  and  restrained  in 
some  manner  by  the  terms  of  a  bill  of  lading  or  other  special 
contract,  whose  provisions  cannot  be  disregarded  ;  while,  fur- 
thermore, an  implied  promise  to  carry  will  be  almost  inevi- 
tably deducible  from  the  carrier's  mere  acceptance,  sufficient 
to  sustain  assumpsit  for  a  loss  or  injury. ^  As  contrasted  with 
the  action  ex  delicto,  that  ex  contractu  has  certain  advantages 

1  Stevens  v.  Sayward,  3  Gray  (Mass.),  108. 

2  Dwight  V.  Brewster,  1  Pick.  (Mass.)  50;  PLiwkins  v^  Hoffman,  6  Hill 
(N.  Y.),  586,  588. 

As  to  a  further  possible  advantage,  in  respect  of  gaining  costs,  under 
the  limitations  imposed  by  practice  acts,  where  one  sues  for  the  tort 
rather  than  under  a  contract,  see  2  E.  &  E.  84i  ;  Baylis  v.  Lintott,  L.  R. 
8  C.  P.  345. 

Replevin  does  not  lie  by  the  consignee  against  a  common  carrier  em- 
ployed to  carry  "C.  O.  D.,"  before  payment  and  delivery  ;  for  to  sue  in 
replevin  one  should  be  entitled  to  the  immediate  and  exclusive  possession 
of  the  goods.  Lane  v.  Chadwick,  146  Mass.  68.  Carrier  in  such  a  case 
is  still  agent  of  the  consignor,     lb.     Cf.  449,  ante. 

«  §  561.  See  2  Chitt.  Tl.  342,  355,  7th  ed.  for  the  form  of  declaration 
appropriate  to  suing  a  land  carrier  in  assumpsit. 


REMEDIES  AGAINST   COMMON   CARRIERS  285 

of  its  own.  The  action  survives,  unlike  that  grounded  in 
tort,  against  the  carrier's  personal  representatives  ;  a  consider- 
ation of  less  consequence,  however,  where  the  carrier  is  a 
corporation.  The  plaintiff,  too,  may  join  the  common  money 
counts,  if  he  has  other  appropriate  causes  of  action.  He  can 
maintain  assumpsit  where  trover  would  have  laid  instead,  as 
for  misdelivery  and  misappropriation.^  But,  as  already  in- 
timated, by  suing  in  assumpsit,  the  plaintiff  cannot  join  a 
count  in  trover,  since  contract  and  tort  furnish  separate 
and  distinct  causes  of  action  ;  nor  can  he  join  and  disjoin 
parties  defendant,  at  his  convenience,  but  must  bring  all 
co-defendants  together  into  his  suit,  and  prove  them  all  Hable 
together.^ 

459.  Local  practice,  ho^vever,  tends  to  assimilate  forms  of 
action  more  closel}',  and  overcomes  in  many  respects  the  tech- 
nical distinctions  of  the  common  law.  Thus,  in  some  parts 
of  the  United  States,  the  plaintiff,  when  it  is  deemed  doubt- 
ful to  which  class  a  particular  cause  of  action  belongs,  may 
join  a  count  in  contract  with  a  count  in  tort,  averring  that 
both  are  for  one  and  the  same  cause  of  action;  thougli  the 
joinder  of  actions  of  contract  and  tort  be  not  permitted.^  If 
the  bailment  be  made  under  circumsfcinces  which  do  not  justify 
a  conclusion  that  the  carrier  entered  into  a  contract  relation 
with  liim  for  the  thing's  conveyance,  the  bailor,  it  is  held,  can- 
not sue  ex  contractu  ;  but  he  ma}' ,  nevertheless,  be  entitled,  in 
some  instances,  to  bring  his  action  ex  delicto  as  for  an  injury 
done  to  his  property  through  the  negligence  or  misconduct  of 
the  bailee.* 


1  §  561 :  5  B.  &  Aid.  3t2,  349. 

2  Ante,  457  ;  §  561;  Patton  v.  Magrath,  1  Rice  (S.  C),  162. 

3  §  562;    Ailing   v.    Boston   &    Albany    R.,    126    Mass.     121     (local 
statute). 

4  Martin  v.  Great  Indian  R.,  L.  R.  3  Ex.  9;  Hannibal  R.  v.  Swift,  12 
"Wall.  (U.  S.)  262. 

Such  is  the  distinction  sometimes  raised  where  articles  ai-e  trans- 
ported as  a  passenger's  baggage,  for  which  the  bailee  might  be  held  re- 
sponsible under  circumstances  of  loss  by  default,  not  as  carrier,  but  in 
some  less  onerous  capacity.     See  post,  Part  VII.  c.  4;  Flint  R.  v.  Weir, 


286  THE   LAW   OF   BAILMENTS 

460.  Admiralty   proceedings,  we    should   add,  are    sustainable 

against  a  defaulting  coninion  carrier  whose  transportation  is 
substantially  by  sea  or  those  navigable  waters  over  which  our 
admiralty  courts  take  jurisdiction ;  though  not  to  the  exclusion 
of  an  aggrieved  party  from  the  common-law  courts.^ .  The 
chief  ground  for  sustaining  a  libel  of  this  character  appears 
to  be  that,  in  such  a  case,  the  contract  of  affreightment  may  be 
viewed  as  a  maritime  contract,  and  the  service  undertaken  by 
the  carrier  a  maritime  service  ;  but,  where  the  issue  is  made 
upon  one's  breach  of  a  legal  duty,  it  might  be  said,  instead,  that 
there  was  a  marine  tort,  committed  on  the  navigable  waters, 
of  which  admiralty  might  properly  take  cognizance.^  Tlie 
peculiar  relation  of  the  State  and  Federal  courts,  under  the 
Constitution  of  the  United  States,  whereby  admiralty  juris- 
diction is  enforced  independently  of  State  authority,  may 
commend  this  method  of  procedure  as  a  preferable  one  in  mjiny 
cases  where  the  carrier  by  water  is  in  default ;  not  to  speak 
of  those  more  general  advantages  wliich  a  libel  in  rem  and  an 
appeal  to  the  familiar  rules  and  methods  of  procedure  recog- 
nized by  commercial  countries  might  afford  the  aggrieved 
party.^ 

461,  (2)  Concerning  the  party  plaintiff,  where  goods  are  lost 
or  injured  in  transportation.  Here,  again,  is  to  be  found  a 
considerable  diversity  of  opinion,  notwithstanding  the  general 
rule  that  an  action  sliould  be  brouglit  in  the  name  of  the  per- 
son whose  legal  right  of  ownership  has  been  thereby  affected ; 
for  the  carriage  of   goods  often  imports  one  owner  at  the 

37  Mich.  111.  But  one  may  sue  in  tort  for  breach  of  common. law  duty, 
even  though  the  carrier  receives  under  a  special  contract  with  limitation. 
28  Mont.  297. 

1  Citizens'  Bank  v.  Nantucket  Steamboat  Co.,  1  Story  (U.  S.),  IG;  Xew 
Jersey  Steam  Nav.  Co.  v.  Merchants  Bank,  6  How.  (U.  S.)  378 ;  The 
Thames,  14  Wall.  (U.  S.)  98;  Shepherd  v.  Harrison,  L.  R.  5  H.  L. 
116  ;  §  563. 

2  The  holder  of  a  bill  of  lading  for  water  carriage  has  a  threefold 
remedy,  —  against  the  master  on  his  undertaking,  against  the  owners 
personally,  or  against  the  vessel  in  rem.  01c.  (U.  S.)  12,  15;  1  Ware 
(U.  S.),  203.     And  see  Blum  v.  The  Caddo,  1  Woods  (U.  S.),  G4, 

8  §  563. 


REMEDIES   AGAINST   COMMON   CARRIERS  287 

place  of  bailment  delivery,  to  be  succeeded  by  another  at  the. 
terminus  of  the  route,  the  latter  being  the  more  immediate 
party  to  controversies  with  the  carrier  over  the  loss  or  injury 
of  that  which  would  in  due  course  have  reached  his  possession 
unimpaired.^  The  theor}'  of  ownership  suffers  in  the  modern 
construction  of  this  right  to  sue  the  carrier,  however  well  it 
may  establish  that  the  mere  servant  or  agent,  who  has  con- 
tracted solely  for  another  without  having  any  direct  beneficial 
interest  in  the  bailment  transaction,  is  not  the  proper  party 
plaintiff  in  the  case.  Even  here,  one  like  a  warehouseman,  a 
carrier,  or  other  principal  bailee,  having  a  beneficial  interest 
in  the  subject-matter  of  the  carriage  contract,  may,  by  reason 
of  his  privity  with  the  carrier  who  occasions  a  loss,  his  bene- 
ficial interest,  and  his  own  obligation  to  answer  over  to  the 
true  owner,  be  the  suitable  party  plaintiff.^ 

462.  The  consignor  is  generally  favored  as  the  party  properly 
entitled,  in  cases  of  land  carriage,  to  sue  the  carrier;  and  this 
not  only  for  the  latter's  wrong  or  breach  of  contract  in  con- 
nection with  accepting  the  goods  for  transit,  but  likewise, 
though  less  positively,  where  loss  or  injury  occurs  while  the 
bailment  purpose  is  being  accomplished.  The  most  widely 
accepted  reason  of  this  appears  to  be  that,  at  the  tijue  the  loss 
or  injury  occurs,  and  the  carrier  becomes  in  default,  the  con- 
signor is  still  the  owner,  general  or  special,  of  the  property 
bailed.^  But  this  very  admission  of  general  and  special 
ownership  leaves  open  a  potential  right  of  action  against  the 
carrier,  apart  from  an  absolute  proprietorship  of  the  thing. 
And,  further,  the  inclination  of  various  eminent  authorities 

1  §  564;  8  T.  R.  330;  Law  v.  Hatcher,  4  Blackf.  (Tnd.)  364;  Sanford 
V.  Ilousatonic  R.,  11  Cush.  (Mass.)  155.  That,  as  against  the  true  owner 
and  shipper  who  sues  him,  the  carrier  cannot  set  up  that  he  transacts  his 
business  under  a  fictitious  name,  in  violation  of  .statute,  see  Wood  v.  Erie 
R.,  72  N.  Y.  196.  See  also  Blum  v.  The  Caddo,  1  Woods  (U.  S.),  64, 
and  cases  cited. 

2  §  564;  Shields  v.  Davis,  6  Taunt.  65;  ante,  434;  c.  9,  post. 

^  §  565;  Freeman  v.  Birch,  1  Nev.  &  M.  4'20  (laundress,  who  paid  for 
the  carriage  of  her  customers'  linen,  allowed  to  sue  for  a  loss  by  the  car- 
rier) ;  Green  v.  Clarke,  12  X.  Y.  343  ;  1  Head  (Tenn.),  15S ;  92  Va.  102. 


288  THE   LAW   OF   BAILMENTS 

is,  in  a  word,  to  respect  the  consignor's  right  to  bring  his 
action,  because  of  his  original  contract  with  tlie  carrier,  and 
his  liability  over  to  the  owner,  apart  from  any  personal  owner- 
ship in  the  thing.^  The  consignor  is  pronounced  the  proper 
party  to  bring  the  action  against  the  carrier,  where  he  plainly 
continues  to  be  the  owner  throughout  the  transit,  and  was 
necessarily  such  at  the  time  when  the  loss  or  injury  in  ques- 
tion must  have  occurred.  Such  is  the  case  where  an  owner 
transports  goods  by  a  carrier,  which  are  to  be  sold  on  com- 
mission.2  Or,  where  the  goods  are  so  sent  on  a  conditional 
sale  to  the  consignee,  that  a  complete  transfer  of  title  and 
property  therein  must  await  their  arrival  and  the  full  accom- 
plishment of  the  carrier's  service.^  Or,  on  a  like  principle, 
where  they  are  sent  "  C.  O.  D.,"  and  the  carrier  fails  to  return 
either  the  goods  or  the  money.*  Or  where,  because  of  a  ven- 
dee's fraud  or  non-compliance  with  the  Statute  of  Frauds,  no 
transfer  of  the  right  of  property  and  risk  of  loss  has  actually 
taken  place,  but  the  consignor  remains  the  owner.^  Or  where 
a  principal  sends  goods  to  his  mere  factor  or  agent.® 

463.  The  consignee,  on  the  other  hand,  is  considered  the 
proper  party  to  sue  the  carrier  in  case  the  goods  become  lost 
or  injured  in  transit,  whenever  delivery  of  goods  to  the  car- 
rier is  on  behalf  of  a  consignee  in  whom  is  the  property  therein, 
with  the  accompanying  risks  of  ownership,  whether  such  title 
antedated  the  consignment,  or  operates  by  virtue  thereof ;  and, 
if  the  circumstances  show  that  the  carriage  contract  was  made 

^  Davis  V.  James,  5  Burr.  2680,  per  Lord  Mansfield;  Freeman  v.  Birch, 
1  Nev.  &  M.  420;  Atchison  v.  Cliicago  R.,  80  Mo.  213;  post,  464.  Cf. 
Coombs  V.  Bristol  R.,  3  H.  &  N.  1. 

2  Sanford  v.  Housatonic  R.,  11  Cush.  (Mass.)  155. 

8  Swain  v.  Shepherd,  1  Moo.  &  R.  224. 

*  United  States  Express  Co.  v.  Keefer,  59  Ind.  263.  And  see  ante, 
406;  Spence  v.  Norfolk  R.,  92  Va.  102. 

6  Coats  V.  Chaplin,  3  Q.  B.  483 ;  6  Moore,  469 ;  Stockdale  v.  Dunlop, 
6  M.  &  W.  224;  Steplienson  v.  Hart,  4  Bing.  476  ;  3  H.  &  N.  510;  Law 
V.  Hatcher,  4  Blackf.  (Ind.)  304  ;  Carter  v.  Graves,  9  Yerg.  (Tenn.) 
446. 

«  5  B.  &  Aid.  350;  Price  v.  Powell,  3  Comst.  (X.  Y.)  322;  Green  v. 
Clarke,  2  Kern.  (N.  Y.)  343. 


REMEDIES  AGAINST  COMMON  CARRIEKS  289 

by  or  on  behalf  of  the  consignee,  so  that  the  carrier  undertook 
as  the  consignee's  bailee,  the  consignor  will  not  be  permitted 
to  sue  him  at  all.^  The  consignee  who  has  bought  the  goods 
and  paid  the  freight  for  their  transportation  is  certainly  a 
proper  person  to  sue,  and,  as  it  would  appear,  the  only  proper 
one.2  So,  too,  has  the  consignor  been  denied  the  right  to  sue, 
where  he  sent  as  a  mere  agent  of  the  consignee,  having  no 
personal  responsibility  in  the  employment  of  the  carrier,  and 
exercising  no  discretion  in  the  choice  of  the  transportation 
means.^  And  as  to  water  carriage  it  is  frequently  asserted 
that  the  property  in  the  goods  shipped  is  primoL  facie  in  the 
consignee,  who  may  sue  accoixlingiy.* 

464.  But  the  test  of  a  contract  relation  •with  the  carrier  ap- 
pears to  have  controlled,  rather  than  that  of  ownership,  in 
several  instances ;  though  this,  perhaps,  is  a  doctrine  most 
frequently  relied  upon  to  maintain  a  consignor's  standing  in 
court,  where  the  general  property  to  the  goods  had  confessedly 
passed  out  of  him  before  the  loss  occurred.  This  privity  of 
contract  with  the  carrier,  which  is  most  strongly  manifested 
where  the  plaintiff  actually  selected  the  particular  carrier  and 
paid  or  agreed  to  pay  him  for  the  transportation  of  the  goods, 
is  a  strong  and  reasonable  ground  of  action,  and  may  very 
conveniently  be  insisted  upon,  where  no  party  claiming  better 
rights  has  intervened  to  per|)lex  the  carrier  with  other  issues 
of  property  transfer  and  legal  ownership.^ 

M  566;  8  T.  R.  330;  Fragano  v.  Long,  4  B.  &  C.  219;  Brown  v.  Hodg- 
son, 2  Camp.  36;  Everett  v.  Saltus,  15  Wend.  (N.  Y.)  47-t;  Jlsley  v. 
Stubbs,  9  Mass.  63;  Bonner  v.  Marsh,  10  Sm.  &  M.  (Miss.)  376;  18  Barb. 
32;  Kirkpatrick  v.  Kansas  City  R.,  86  Mo.  341. 

-  South  Alabama  R.  v.  Wood,  72  Ala.  451.     Cf.  103  Ind.  553. 

8  Thompson  v.  P'argo,  49  N.  Y.  188. 

*  Lawrence  v.  Minturn,  17  How.  (U.  S.)  100;  Colemaii  v.  Lambert, 
5  M.  &  W.  502;  1  Woods  (U.  8.),  64.  See  also  Pennsylvania  Co.  v. 
Holderman,  69  Ind.  18.  One  who  has  made  advances  on  the  consignment 
may  sue  as  consignee.     3  Blatchf.  (U.  S.)  289. 

^  §  567;  Mead  v.  Southwestern  R.,  18  W.  R.  735.  And  see  5  Burr. 
2680;  Freeman  v.  Birch,  1  Nev.  &  M.  420;  Goodwyn  v.  Douglas,  1  Cheves 
(S.  C.)  174;  Blanchard  v.  Page,  8  Gray  (Mass.),  281,  289;  13  111.  App. 
490. 

19 


290  THE  LAW   OF   BAILMENTS 

465.  Now  as  to  general  or  special  o-wnership.  Where  the 
bailee  of  property  delivers  it  to  a  carrier  for  transportation, 
the  rule  is  that  either  the  bailee  or  the  bailor  may,  in  general, 
sue  the  carrier  for  its  loss  or  injury ;  ^  the  court  taking  heed, 
as  between  these  parties  themselves,  that  each  interest  shall  be 
protected  out  of  the  judgment,  but  not  permitting  the  defend- 
ant, who  is  only  once  answerable,  to  object.  And,  as  to  a 
bailment  for  transportation  by  the  agent  of  an  undisclosed 
principal,  the  rule  is  that  either  the  agent  or  the  real  princi- 
pal may  sue  upon  it,  saving  the  defendant's  right,  in  the  lat- 
ter case,  of  being  placed  in  the  same  situation  at  the  time  of 
disclosing  the  real  principal,  as  if  the  agent  had  been  the  con- 
tracting party .2  Hence,  the  principal  himself,  even  though 
undisclosed  by  his  agent,  may  sue  the  carrier  in  his  own 
name  to  recover  damages  for  loss  or  injury  of  the  property 
sustained  while  bailment  accomplishment  was  in  progress.^' 
Where  one  having  a  special  property  in  the  goods  bailed 
them  for  transportation,  the  carrier  cannot  volunteer  the  de- 
fence that  some  one  else  was  the  owner.^  And  the  consignee 
of  property  to  be  sold  by  him  on  conunission  may  sue  for  all 
damages  caused  to  himself  and  the  owner,^ 

1  §  568;  White  v.  Bascom,  28  Vt.  268;  Freeman  v.  Birch,  1  Nev.  & 
M.  4-20;  ante,  462. 

-  Sims  r.  Bond,  5  B.  &  Ad.  393,  per  Lord  Denman. 

8  Jb.;  Higgiiis  v.  Senior,  8  M.  &  W.  834;  Beebe  r.  Robert,  12  Wend. 
(N.  y.)  413;  Taintor  v.  Prendergast,  3  Hill  (N.  Y.),72;  Elkins  i'.  Boston 
&  Maine  R.,  19  N.  H.  337;  Sanderson  v.  Lamberton,  6  Binn.  (Penn.)  129. 
This  rule  applies,  notwithstanding  the  Statute  of  Frauds.  Higgins  v. 
Senior,  supra.  And  see  New  Jersey  Steam  Nav.  Co.  i\  Merchants  Bank, 
6  How.  (U.  S.)  344,  where  the  same  doctrine  was  approved  in  the  cele- 
brated case  of  the  loss  of  the  steamer  Lexington  in  Long  Island  Sound. 
Here  a  bank  had  delivered  to  Ilarnden's  express  a  large  amount  of  specie 
for  transportation,  but  Havnden  had  in  his  own  name  contracted  with  the 
Steam  Navigation  Company  for  its  due  conveyance. 

^  Denver  R.  v.  Frame,  6  Col.  382. 

6  Boston  &  Maine  R.  v.  Mower  Co.,  76  Me.  251. 

The  joint  owners  of  personal  property  intrusted  to  a  common  carrier 
have  been  permitted  to  sue  together  for  its  loss,  notwithstanding  the  re- 
ceipt whiclithe  carrier  gave  for  the  property  when  he  received  it  acknowl- 
edged that  he  had  received  it  from  two  of  them,  — the  joint  ownership  of 


REMEDIES   AGAINST   COMINION   CARRIERS  291 

466.  As  to  the  right  of  suit  under  a  bill  of  lading  or  similar 
document.  If  the  right  to  sue  the  carrier  turned  strictly  upon 
legal  ownership  at  the  time  of  loss,  this  would  be  so  hard  a 
matter  to  determine  conclusively  in  those  modern  instances 
Avhere  the  title  to  inland  freight,  as  well  as  that  carried  by 
water,  is  transferred  in  transit  by  symbol,  that  the  delinquent 
carrier  would  too  often  profit  by  the  misconception  of  plaintiff 
parties,  and  baffle  their  efforts ;  for  legal  ownership  and  the 
right  to  demand  the  goods  as  consignee  may  change  over  and 
over  while  one  transportation  purpose  is  being  accomplished. 
The  better  opinion,  then,  is  decidedly  to  the  effect  that  the 
shipper  named  in  a  bill  of  lading  may  sue  the  carrier  for  in- 
jury or  loss  of  the  goods,  although  he  has  retained  no  property, 
general  or  special,  therein ;  for  though  some  third  party,  not 
appearing  in  such  document  of  title,  might  maintain  his  own 
action  against  the  carrier,  it  does  not  follow  that  the  shipper 
cannot  sue  as  upon  his  original  contract  with  the  carrier.^ 
And  if  the  shipper,  under  a  bill  of  lading,  can  overcome  any 
presumptions  to  the  contrary,  and  show  that  he  is  the  true 
owner  of  the  goods  therein  described,  he  is  doubtless  entitled 

the  other  plaintiff  beiii'ji;  unknown  to  liiin.  §  569;  Day  v.  Ridley,  16  Vt. 
48.  And  a  receipt  given  by  the  consignee  on  arrival  of  the  goods,  though 
purporting  to  acknowledge  their  receipt  in  good  order,  does  not  necessarily 
estop  a  consignor  from  suing  as  of  right  for  the  carrier's  negligent  trans- 
portation. Sanford  c.  Housatonic  K.,  11  Cash.  (Mass.)  155.  A  part 
owner  of  goods  may  sue  for  their  loss  w  here  the  contract  was  made  with 
him.     Cantwell  i'.  Pacific  Co  ,  .58  Aik.  487. 

An  action  against  a  common  carrier  for  goods  and  chattels  belonging 
to  a  minor  child  ought  to  be  brought  in  the  name  of  the  child.  See  2  C. 
&  P.  578;  Baltimore  Steam  Packet  Co.  v.  Smith,  2:]  Md.  402.  Though 
the  fundamental  principle  here  considered  is  simply  that  of  ownership. 
By  the  common  law  a  wife's  personal  property  vests,  for  the  most  part, 
in  her  husband;  and  though  the  married  women's  legislation  and  the 
modern  doctrine  of  sejiarate  property  has  greatly  changed  this  state  of 
things,  it  remains  true  that,  as  to  things  personal  which  are  not  the  sepa- 
rate property  of  the  wife,  and  are  lost  or  injured  by  the  common  carrier, 
the  husband,  and  not  the  wife,  should  sue.  Hawkins  v.  Providence,  &c. 
II.,  119  Mass.  50(3;  Furman  r.  Chicago  R.,  57  Iowa,  42. 

1  §  570;  Shaw,  C.  J  ,  in  Blanchard  r.  Page,  8  (iray  (Mass.),  281,  289. 
But  cf.  ;3  B.  &  Aid.  277;  Potter  v.  Lansing,  1  Johns.  (N.  Y.)  215. 


292  THE   LAW   OF   BAILMENTS 

to  bring  the  action  in  his  own  name.^  As  concerns  the 
assignee  and  transferee  of  goods  under  a  bill  of  lading,  where- 
ever  it  is  shown  that  the  consignor  was  the  consignee's  agent, 
and  shipped  the  goods  for  his  principal's  account  or  by  his 
order,  the  consignee  may  doubtless  maintain  his  action  against 
the  carrier.2  Where  it  is  stated  in  such  a  document  that  the 
goods  are  consigned  to  a  person  named  therein  for  his  account 
and  risk,  the  inclination  appears  to  have  been,  in  the  older 
cases,  to  let  the  right  of  action  go  b}^  legal  ownership,  rather 
than  expect  the  shipper  himself  to  sue,^  And  we  may  con- 
clude from  the  latest  cases  that,  whatever  the  shipper's  own 
right  of  action  as  such,  the  party  who  holds  the  bill  of  lading,  as 
such  bills  are  now  usually  availed  of  in  inland  or  sea  transpor- 
tation, has  a  primd  facie  ownership  of  the  goods  sufhciently 
enabling  him  to  sue  the  carrier  for  their  loss  or  damage  in 
transit.*  But  here  we  assume  that  the  bill  was  negotiable  in, 
form.^ 

1  Sargent  v.  Morris,  3  B.  &  Aid.  77;  Price  v.  Powell,  3  Comst.  (N.  Y.) 
322.  And  see  Moore  v.  Sheridine,  2  Har.  &  M.  453,  where  the  consign- 
ment was  "to  A  or  B."  For  suit  by  the  assignee  of  an  insolvent  con- 
signee, see  Mass.  Loan  &  Trust  Co.  v.  Fitchburg  R.,  143  Mass.  318. 

2  Blanchard  v.  Page,  8  Gray  (Mass.),  281,  289. 

3  Ih. ;  1  Johns.  (N.  Y.)  21,5. 

*  §  570;  Barber  v.  Meyerstein,  L.  R.  4  II.  L.  317;  Shepherd  v.  Harri- 
son, L.  R.  5  H.  L.  116;  4  IMcLean  (U.  S.)  325;  Arbuckle  v.  Thompson, 
37  Penn.  St.  170;  Price  v.  Powell,  3  Comst.  (N.  Y.)  322;  Conard  v. 
Atlantic  Ins.  Co.,  1  Pet.  (U.  S.)  386,  445;  The  Thames,  14  Wall.  (U.  S.) 
98.  The  tendency  here  is  to  permit  one  to  sue,  like  the  holder  of 
negotiable  paper,  even  though  not  the  beneficial  party  in  interest.  In 
favor  of  other  consignees  and  under  inland  bills  of  lading  a  similar 
right  to  sue  has  been  recognized,  though  one  be  not  the  beneficial  party. 
Mobile  R.  v.  Williams,  54  Ala.  168.  See  also  Chaffe  v.  Mississippi  R., 
59  Miss.  182. 

The  party  who  was  or  becomes  owner  of  the  goods  by  assignment  from 
the  shipper  or  otherwise,  and  who  becomes  lawful  holder  of  the  bill  by 
indorsement  or  otherwise,  and  who  really  sustains  the  damage  may  sue 
the  carrier  accordingly.     Shaw,  C.  J.,  in  8  Gray  (Mass.),  281. 

^  The  mere  assignee  of  a  non-negotiable  bill  of  lading  cannot,  under 
the  general  rule  of  assignments,  sue  in  his  own  name.  141  111.  110.  And 
the  consignee  should  not  sue  wlierc  the  consignor  made  the  contract,  unless 
he  is  holder  of  the  bill  of  ladinc:  issued.     81  Ga.  792. 


REMEDIES   AGAINST   COMMON   CARRIERS  293 

467.  To  conclude  as  to  the  proper  party  plaintiff.  In  general, 
the  right  of  one  to  bring  an  action  against  the  carrier,  as  a 
special  rather  than  general  owner,  or  by  virtue  of  the  carrier's 
promise  or  breach  of  public  duty,  will  not  exclude  the  real 
owner  in  interest  from  intervening  and  bringing  suit  in  his 
own  behalf  in  respect  of  the  goods.  Such  is  the  usual  prin- 
ciple pertaining  to  bailments.  And  hence  a  suit  by  the  con- 
signor, or  by  the  consignee,  might  avail  against  a  common 
carrier,  where  the  other  party,  or  some  third  person  with 
claims  paramount  to  both,  had  the  right  to  step  in  and  antici- 
pate one's  recovery  of  damages.  The  practical  result  of  this 
would  be  that  the  carrier  himself  could  not  set  up  the  plain- 
tiff's want  of  interest  or  authority  to  bring  the  suit,  but  would 
liave  to  respond  fully  to  him  on  the  legal  assurance  that  one 
satisfaction  on  such  a  fair  and  prima  facie  showing  of  authority 
would  debar  any  and  all  other  possible  parties  in  interest  from 
pursuing  him  for  the  same  delinquency;  ^  and  that  a  judgment 
once  obtained  in  his  favor  on  the  merits  of  the  case  would,  in 
like  manner,  conclude  the  potential  as  well  as  the  actual  plain- 
tiff .^  But  where  the  theory  of  general  or  special  ownership  is 
untenable,  and  one  party  holds  himself  out  to  the  carrier  as 
having  no  interest  at  all,  the  case  is  different;  for  the  weiglit 
of  authority  favors  tlie  proposition  that  the  person  having 
both  the  right  of  property  and  the  right  of  possession  is  the 
party  to  sue,  whether  consignor  or  consignee.^  And  inas- 
much as  a  delivery  to  an  agent  for  and  on  behalf  of  his  prin- 
cipal will  transfer  the  property  equally  with  a  delivery  to 
the  principal  himself,  delivery  may  be  made  to  a  carrier  as 

1  §  571.  See  Nicolls  v  Bastard,  2  C.  M.  &  R.  657;  ante,  30,  60,  91, 
127,  182,  as  to  other  bailees;  Elkins  v.  Boston  &  Maine  R.,  19  N.  H.  337; 
Steamboat  Farmer  v.  McCraw,  26  Ala.  189. 

2  In  Green  v.  Clarke,  12  N.  Y.  343,  this  doctrine  availed  on  behalf  of 
a  carrier  as  against  the  special  owner,  where  the  general  owner  had  already 
sued  and  lost  his  case. 

A  release  in  full  to  the  carrier  by  the  consignor  without  autliority  from 
the  consignee  does  not  debar  the  latter  from  suing  for  damages.  City  R. 
V.  Chicago  R.,  63  Wis.  93. 

3  Potter  V.  Lansing,  1  Johns.  (N.  Y.)  2U;  The  Venus,  8  Cr.  (U.  S.) 
252;  Brandt  v.  Bowlby,  2  B.  &  Ad.  932;  1  Woods  (U.  S.),  64. 


294  THE   LAW   OF  BAILMENTS 

strictly  on  the  consignee's  behalf.^  What  the  conflicting 
decisions  in  Enghmcl  and  the  United  States  chiefly  maintain, 
however,  with  some  legal  inconsistency,  is  that  in  doubtful 
cases  the  carrier  shall  not  dispute  the  right  of  either  consignor 
or  consignee  to  bring  the  suit ;  and  furthermore,  that  because 
one  of  these  parties  has  the  right  to  sue,  it  does  not  follow 
that  the  other  might  not  have  sued  instead.^ 

468.  (3)  Concernins  the  party  defendant.  It  has  already  been 
observed  that  where  the  common  carrier  is  sued  for  a  loss  or 
injury  to  the  goods  ex  delicto,  the  non-joinder  or  misjoinder 
of  parties  defendant  is  not  of  vital  consequence,  wliereas  if 
the  suit  were  ex  co7itractu,  such  an  error  would  be  fatal.^  In 
further  considering  the  question  against  whom  a  suit  should 
be  brought,  the  principles  brought  into  view  in  former  cliap- 
ters  are  to  be  remembered ;  so  that  one  who  seeks  to  bring 
his  common-law  action  correctly  must  be  careful  to  sue  the 
principal  carrier,  —  not  the  servant  or  subordinate  ;  the  person, 
firm,  or  company  whicli,  as  public  carrier,  has  the  actual  con- 
trol, direction,  and  management  of  the  transportation  service 
hired  by  the  customer,  —  not  the  mere  proprietor  of  a  route 
or  vehicles ;  the  actual  bailee  who  holds  himself  out  to  accom- 
plish the  bailment  purpose,  —  not  his  sub-bailee  with  whom 
the  bailor  had  no  privity.*  All  these  points  have  been  dis- 
cussed in  place  already.^  But,  on  familiar  principles,  either 
the  agent  of  an  undisclosed  principal  may  be  sued,  or  the 
principal  himself ;  and  an  undisclosed  party  may  be  held  liable 
as  the  partner  in  fact  of  a  carrier,  whose  personal  responsibility 
was  at  stake'  in  performing  the  public  service  he  professed.^ 
Where,  again,  the  agent  or  servant  of  a  carrier  so  far  exceeds 
the  permitted  and  ostensible  scope  of  his  authority  as  to  dis- 

1  1  Woods  (U.  S.),  64;  1  Atk.  248;  1  Johns.  (N.  Y.)  15.     • 

2  §  571.  A  mere  borrower  from  the  consignee,  who  had  no  privity 
■with  the  carrier,  cannot  sue  for  loss  or  injm-y.     73  Ga.  472. 

8  Ante,  45(J. 
4  Ante,  283. 

s  As  to  the  carrier  to  be  sued  where  there  is  a  line  of  connecting  car- 
riers, see  post,  c.  9. 
6  §  572;  ante,  465. 


REMEDIES   AGAINST   COMMON   CARRIERS  295 

charge  the  principal  or  master,  or  where  one  professes  to  be 
such  an  authorized  servant  or  agent  while  he  is  not  such,  nor 
was  held  out  by  the  true  carrier  as  such  at  all,  the  party 
aggrieved  by  his  conduct  may  sue  him  personally.^  And  if  it 
appears  that  the  contract  was  made  with  the  carrier's  servant 
alone,  and  independently  of  tlie  true  carrier,  though  this  might 
not  prevent  the  carriei-  himself  from  disaffirming  the  contract, 
and  claiming  the  compensation  for  the  service  as  his  own,  like 
any  master  whose  servants  another  has  sought  to  tamper  with 
and  corrupt,  yet  it  is  held  that  the  servant,  and  not  the  carrier, 
must  be  sued  for  losing  or  injuring  the  thing  so  intrusted.^ 

469.  The  master  of  a  ship  or  vessel  has  been  regarded  as  a 
person  of  such  vast  and  independent  authority,  —  one  who 
must  be  greatly  trusted  by  all  having  dealings  with  him,  as 
chief  executive  in  a  hazardous  transportation  involving  pos- 
sible contingencies  where  his  sole  discretion  must  determine 
what  should  be  done  with  ship  and  cargo,  and  as  efficient 
representative,  moreover,  of  all  concerned  at  distant  ports,  — 
that,  upon  considerations  of  convenience  and  public  policy, 
these  have  long  been  considered  personally  liable  as  common 
carriers,  by  way  of  exception  to  the  usual  rules  of  agency,  so 
that  one  suffering  loss  or  injury  of  freight  from  some  inex- 
cusable cause  can,  at  his  election,  proceed  against  either  master 
or  owner.  This  conforms  to  the  tenor  of  the  civil  law,  and, 
indeed,  to  the  almost  universal  law  of  nations. ^  Convenience, 
in  this  respect,  howevei',  regards  chiefly  the  pecuniary  respon- 

1  A  nte,  284. 

2  /ft.  This  rule  has  been  applied  to  the  driver  of  a  stage-coacli ,  who 
receives  parcels.  And,  as  against  the  owner  of  a  vessel  who  makes  a 
charter-party  of  which  shippers  are  kept  ignorant,  see  The  Figlia  Mag- 
giore,  L.  R.2  Ad.  &  E.  106. 

Partners  or  joint  associates  in  a  common  transportation  may  well  be 
joined  and  made  answerable  for  a  loss  therein  occasioned,  although  some 
of  them  have  no  interest  in  the  vehicle  of  transportation.  Ansell  v. 
VVaterhouse,  6  M.  &  S.  835;  f^airchild  v.  Slocura,  19  Wend.  (N.  Y.)  329. 
This  subject  is  more  fully  treated,  post,  c.  9.  See  Aigen  v.  Boston  & 
Maine  R.,  132  Mass.  423. 

3  §  573;  Morse  v.  Slue,  1  Vent.  190;  Elliott  v.  Rossell,  10  Johns. 
(N.  Y.)  1. 


296  THE  LAW   OF   BAILMENTS 

sibility  of  a  defendant ;  and  perhaps  tliis  rule  concerning  the 
master  has  its  foundation  in  a  general  solicitude  that  one 
brought  into  such  intimate  contact  with  the  customer  by  af- 
freightment contract,  bill  of  lading,  and  otherwise,  shall  have 
the  ship  where  it  may  be  bound  firmly  for  the  engagement, 
regardless  of  the  owners,  or  their  attempted  qualifications  of 
liability.  The  present  tendency  of  the  decisions  appears  to 
be  against  charging  the  master  of  a  vessel  unduly  in  a  per- 
sonal capacity  for  the  acts  and  conduct  of  others  which  cannot 
,be  brought  home  to  him,  either  as  the  principal  contracting 
party,  or  as  a  wrong-doer ;  and  this  more  especially  where  the 
injury  or  loss  appears  disconnected  with  the  period  of  actual 
marine  service.^ 

470.  Various  formalities  are  prescribed  under  local  statute 
with  respect  to  suing  joint-stock  companies  and  corporations, 
which  have  only  a  local  operation,  but  must  be  locally  observed.^ 

471.  (4)  Concerning  the  declaration  and  pleadings  in  cases  of 
loss  or  injury.  Inasmuch  as  the  action  against  the  carrier  ex 
delicto  is  founded  so  nearly  in  what,  from  a  different  approach, 
might  be  called  a  contract  breach  of  duty  or  misfeasance, 
difficulty  may  arise  from  drawing  a  declaration  of  a  tenor 
unsuitable  to  the  form  of  action.  Thus,  averments  of  a 
"  promise  "  or  a  "  consideration,"  on  the  carrier's  part,  or  of 
"  an  agreement,"  befit  the  action  ex  contractu  rather  than  that 
on  the  case  for  tort,  notwithstanding  his  "  negligent  conduct " 
and  "  misfeasance  "  be  likewise  relied  upon  ;  ^  and  it  is  always 

1  §  573;  G  C.  B.  N.  s.  894,  911;  Sandemau  v.  Scurr,  L.  R.  2  Q.  B. 
86;  Walston  v.  Myers,  5  Jones  (N.  C),  174.  The  master  having  been 
sued  to  judgment  on  a  bill  of  lading,  the  owner  cannot  be  sued,  although 
the  jud_q;nient  be  unsatisfied.     Priestly  v.  Fernie,  3  H.  &  C.  977. 

-  §  574.  Thus,  in  New  York,  it  is  provided  that  suits  against  joint- 
stock  companies  shall,  in  the  first  instance,  be  prosecuted  in  the  name 
of  the  president  or  treasurer;  but  that  after  judgment  against  the  com- 
pany, and  the  return  of  execution  unsatisfied,  the  members  may  be  sued 
individually;  while,  in  Massachusetts,  tiie  members  of  the  company  may 
be  sued  as  partners  in  the  first  instance.  See  Gott  v.  Dinsmore,  111 
Mass.  4.")  (a  suit  against  the  "  Adams  Express  Company  "  );  ante,  286. 

*  See  Baylis  v.  Lintott,  L.  R.  8  C.  P.  345,  distinguishing  Tattau  c. 
Great  Western  R.,  2  E.  &  E.  844. 


KEMEDIES   AGAINST  COMMON   CARRIERS  297 

important  that  the  pleadings  should  correspond  to  the  dis- 
tinctive character  of  the  action. ^  In  laying  the  cause  of  action 
ex  delicto  on  the  custom  of  the  realm  or  State,  an  express  alle- 
gation that  the  defendant  is  a  common  carrier  seems  quite 
material ;  and  a  demurrer  founded  on  a  real  omission  of  such 
allegation  would  probably  be  good;  ^  yet  altera  verdict  against 
him,  rendered  upon  proof  of  all  the  material  facts,  it  may  be 
too  late  for  the  defendant  to  raise  such  objection.^  The  alle- 
gation of  compensation  or  consideration  need  not  be  specific 
even  in  actions  for  a  loss  or  injury  ex  contractu;  and  it  is 
enough  to  allege  that  the  consideration  of  conveying  the  par- 
ticular jjroperty  was  a  certain  reward,  or  a  reasonable  hire  and 
reward,  without  stating  what  that  reward  was.*  If  the  action 
is  brought  ex  delicto,  no  allegation  of  a  compensation  or  con- 
sideration paid,  or  agreed  to  be  paid,  ought  to  be  made  at  all.^ 
The  quantity  and  quality  of  the  goods  to  be  conveyed  may  be 
generally  described  without  great  nicety,  where  the  action  does 
not  rely  upon  a  bill  of  lading,  or  other  special  instrument 
making  a  minute  description  of  the  property.^  Where,  in 
fact,  the  recovery  sought  is  damages  for  an  inexcusable  loss 
or  injury  to  a  thing,  and  not,  as  in  replevin,  the  thing  itself, 
and  where  the  plaintiff's  ground  of  action  is  a  breach  of  the 
carrier's  general  duty,  or  of  some  promise  on  his  part,  to  be 

^  §  575.  But  as  to  the  joinder  of  counts  of  contract  and  tort  in  local 
practice,  see  ante,  459.     See  also  68  Ga.  o44. 

2  Averment  that  defendant  is  a  corporation  created  by  the  laws  of  the 
State,  and  engaged  in  operating  a  railroad,  and  carrying  corn  and  grain 
in  cars  furnished  by  itself,  etc.,  is  equivalent  to  an  averment  that  it  is  a 
common  carrier.  Toledo  R.  v.  lloberts,  71  111.  540.  And  in  a  suit  upon 
a  special  contract  of  a  railroad  company  "  to  carry,"  etc.,  there  need  be 
no  express  averment  that  defendant  is  a  common  carrier.     36  S.  C.  110. 

2  Pozzi  V.  Shipton,  8  A.  &  E.  963.  And  see  Jones  v.  Pitcher,  3  Stew. 
&  P.  (Ala.)  135.  For  insufficient  allegation  of  right  to  sue  where  a  con- 
signor sued  for  non-delivery  to  his  consignee,  see  69  Ind.  18.  And  as  to 
consignee  who  does  not  allege  ownership,  see  103  111.  553.  See  forms  of 
declaration  in  4  Rob.  Prac.  780-783  ;  9  W.  Va.  33. 

*  Clarke  v.  Grav,  6  East,  564 ;  78  Tex.  307 j.  Ferguson  v.  Cappeau,  6 
liar.  &  J.  394  ;  Hall  v.  Cheney,  36  X.  II.  26. 

6  Hall  r.  Cheney,  36  N.  II.  26  ;  Baylis  t--.  Lintott,  L.  R.  8  C.  P.  345. 

6  2  Sauiid.  71  «;  <>  575. 


298  THE   LAW   OF   BAILMENTS 

inferred  from  circumstances  only  and  an  off-hand  delivery  and 
acceptance,  courts  do  not  insist  upon  a  very  closely  drawn 
declaration.  While  the  real  ground  of  complaint  should  be 
disclosed,  the  duty  safely  to  convey  and  deliver,  or  the  promise, 
may  be  set  forth  in  general  language;  the  grievance  may  be 
stated  to  be  non-delivery  within  a  reasonable  time ;  and  it  is 
not  deemed  material  to  set  forth  the  particular  means  by  which 
the  loss  occurred.^ 

472.  But  where  the  ground  of  action  is  a  special  contract 
qualifying  the  carrier's  common-law  risks,  care  should  be  taken 
to  declare  this  contract  correctly  and  specifically,  and  not  set 
up  material  terms  that  were  not  therein  contained,  nor  omit 
material  terms,  nor  allege  a  different  contract  from  that 
actually  made,  nor  sue  as  for  breach  of  one's  duty  and  mis- 
feasance as  "  common  carrier,"  as  though  he  had  transported 
in  his  public  and  unqualified  capacity.^  This  rule  has  been 
strongly  asserted  where  the  action  was  ex  contractu  in  form. 
Where  the  complaint  in  a  suit  against  a  common  carrier  counts 
upon  a  breach  of  his  common-law  liability,  and  the  evidence 
shows  a  special  contract,  the  variance  is  often  held  fatal ;  ^ 
though  as  some  cases  contend,  there  is  no  real  variance  unless 
the  suit  was  ex  contractu*  And  it  would  appear  that  where 
the  action  is  in  tort,  and  not  contract,  the  plaintiff  need  not 

1  §  575  ;  Raphael  v.  Pickfoid,  5  M.  &  G.  551 ;  Peck  v.  Weeks,  34  Conn. 
145  ;  Williams  v.  Baltimore  R.,  9  W.  Va.  33.  Thus,  in  trespass  on  the 
case,  the  allegation  that  the  goods  "  were,  by  the  negligence  of  the  can-ier, 
wholly  lost"  to  the  plaintiff,  is  equivalent  to  an  express  denial  of  their 
delivery  over.  And  see  McCauley  ?'•  Davidson,  10  Minn.  418.  But 
where  the  real  grievance  was  the  failure  to  return  unloaded  cars,  this 
peculiar  grievance  should  be  alleged.     123  111.  594. 

2  §  576;  White  v.  Great  Western  R.,  2  C.  B.  n.  s.  7;  10  C.  B.  454;  7 
Ex.  699,  705 ;  Davidson  v.  Graham,  2  Ohio  St.  131  ;  Camp  v.  Hartford 
Steamboat  Co.,  43  Conn.  333;  110  N.  C.  338;  26  Vt.  247;  Mann  v. 
Birchard,  40  Vt.  326;  Lake  Shore  R.  v.  Bennett,  89  Ind.  457;  90  Ind. 
459. 

8  89  Ind.  457;  Hall  v.  Pennsylvania  Co.,  90  Tnd.  459.     Supra,  §  478. 

*  102  Mass.  552;  Clark  v.  St.  Louis  R.,  64  ]\Io.  440  (the  liability, 
where  tort  is  alleged,  does  not  arise  from  a  special  contract,  but  in  spite 
of  it).  It  may  be  worthy  of  note  that  our  American  rule  does  not  favor  the 
old  English  idea  of  a  "special  accei^tance  "  by  the  carrier.     See  anle,  359. 


REMEDIES   AGAINST  COMMON  CARRIERS  299 

allege  a  special  agreement,  but  may  leave  the  carrier  to  prove 
one  if  he  can.^ 

473.  In  the  declaration  of  an  action  against  the  carrier  ex 
delicto,  there  might  be  a  divisible  averment,  so  that  enough 
being  proved  to  sustain  the  plaintiff's  action,  the  other  part  of 
the  charge  might  be  treated  as  surplusage,  and  suffered  to 
fail.^  But  where  the  action  is  brought  ex  contractu,  no  such 
opportunity  of  division  is  afforded,  for  the  contract  must  be 
proved  materially  as  alleged.^  If  the  declaration  in  assumpsit 
states  an  absolute  contract,  and  the  proof  establishes  a  con- 
tract in  the  alternative,  or  vice  versa,  this  is  a  fatal  variance, 
whether  the  plaintiff  had  the  option,  and  has  determined  it, 
or  it  was  left  to  the  defendant.*  And  where  one  terminus  of 
the  transportation  is  stated,  and  another  is  shown,  the  plain- 
tiff must  fail,  unless  such  variance  be  nominal  only,  and  not 
real.^  But,  as  good  authorities  have  stated,  tlie  form  of  action, 
whether  ex  contractu  or  ex  delicto,  does  not  materially  affect 
the  evidence  necessary  to  maintain  it;  and  even  when  the 
declaration  is  in  case,  the  contract  with  the  carrier,  or  rather 
the  particular  duty  from  which  the  liability  results,  and  on 
which  it  is  founded,  must  be  correctly,  not  incorrectly,  stated. 
For,  in  an  action  on  a  tort  arising  out  of  a  contract,  a  mis- 
statement of  tlie  contract  or  a  material  variance  in  the  proof 
is  fatal,  if  it  goes  to  the  essence  of  the  action ;  and  where  the 
plaintiff  suing  in  tort  goes  into  a  detailed  statement  of  his 
cause  of  action,  he  encounters  a  risk  of  vital  discrepancy,  simi- 
lar to  that  of  a  plaintiff  relying  on  tlie  action  of  contract.^ 

1  Clark  V.  St.  Louis  R.,  64  Mo.  440;  17  Blatchf.  (U.  S.)  421 ;  39  Ark. 
423.  But  cf.  455.  A  mere  limitation  of  damages  against  him,  as  it  were, 
by  the  carriei-'s  special  contract,  need  not  be  noticed  in  pleading  against 
him  ;  but  a  stipulation  that  under  circumstances,  such  as  losses  by  fire 
or  robbery,  he  shall  not  be  liable  at  all,  must  be  stated.  Abbott,  C.  J., 
in  Latham  v.  Rutley,  2  B.  &  C.  20. 

^  See  Butt  v.  Great  Western  R.,  11  C.  B.  140;  87  Ga.  734. 

8  §577:  Hughes  v.  Great  Western  R.,  14  C.  B.  637;  Weed  v.  Sara- 
toga R.,  19  Wend.  (N.  Y.)  534  ;  9  W'.  Ya.  33  ;  81  Ga.  602. 

*  Penny  v.  Porter.  2  East,  2;  Stone  v.  Knowlton,  3  W'end.  (N.  Y.)  374. 

6  Woodward  v.  Booth,  7  B.  &  C.  301 ;  2  Stark.  385. 

«  §577;  Austin  v.  Manchester  R.,  16  Q.  B.  600;  1  Biug.  N.  C.  162; 


300  THE   LAW   OF   BAILMENTS 

474.  (5)  Concerning  the  proof  in  suits  for  loss  or  injury.  We 
have  indicated  in  former  pages  the  evidence  required  on  the 
part  of  a  plaintiff  in  order  to  sustain  his  suit  against  a  common 
carrier ;  the  carrier's  evidence  in  defence ;  also  where  the 
burden  of  proof  lies  in  this,  as  in  other  bailments,  at  any 
particular  stage  of  the  case.  The  contract,  express  or  implied, 
with  the  defendant  carrier  must  be  proven  by  the  plaintiff, 
whether  a  tortious  breach  of  public  duty  or  a  breach  of  con- 
tract be  relied  upon ;  next,  a  bailment  delivery  of  the  goods ; 
lastly,  the  carrier's  failure  to  deliver  the  goods  over  at  the 
journey's  end,  or  his  delivery  in  unsuitable  time  or  condition, 
in  one  of  which  the  alleged  grievance  consists.^  A  bill  of 
lading,  written  receipt,  check,  or  other  token  of  acceptance, 
may  well  establish  the  contract  and  delivery ;  the  receipt,  of 
course,  being  open  to  explanation,  but  not  special-contract 
terms  of  a  document,  admissible  of  themselves,  and  brought 
home,  actually  or  by  legal  implication,  to  the  bailor.^  The 
carrier  may  set  up  exemption  under  his  special  contract  by 
way  of  exoneration,  or  defend  on  the  general  grounds  of  ex- 
cuse which  the  common  law  admits.^  Proof  of  demand  and 
refusal,  or  an  apparent  conversion,  should  place  the  carrier 
who  is  sued  ex  delicto  sufficiently  in  the  wrong  to  oblige  him 
to  clear  himself ;  and  in  general,  when  non-feasance  or  negli- 
gence is  charged  upon  the  carrier,  slight  evidence  in  support  of 
his  allegation  will  suffice  on  the  plaintiff's  part,  whatever  the 
form  of  action.*  But  some  evidence  ought  to  be  adduced, 
such  as  brinofs  the  default  home  to  the  carrier,  and  leaves  it 
unlikely  that  others,  for  whose  acts  he  is  in  no  measure 
responsible,  as,  for  instance,  the  customer  or  his  agents,  caused 

Mann  r.  Birchard,  40  Vt.  326;  Jordan  v.  Hazard,  10  Ala.  221 ;  Baltimore 
R.  V.  Pumphrey,  59  Md.  390;  Stump  v.  Hutchinson,  11  Penn.  St.  553; 
Toledo  R.  V.  Roberts,  71  111.  540,  542. 

In  suinjj  for  unreasonable  delay,  an  allegation  of  non-delivery  within 
a  reasonable  time  is  specific  enough.     101  Cal.  187. 

1  §  578;  15  Fed.  (U.  S.)  867. 

2  See  McCotter  v.  Hooker,  4  Seld.  497;  81*  Penn.  St.  315. 
8  §  578  :  ante,  324. 

4  §  578 ;   Chicago  v.  Dickinson,  74  111.  249. 


REMEDIES   AGAINST   COMMON   CARRIERS  301 

the  loss  or  injury.^     The  common  law  disqualifies  interested 
parties  from  testifying  in  their  own  behalf ;  but  this  disqual- 

1  Jh. ;  Morley  v.  Eastern  Express  Co.,  116  Mass.  97.  As  to  the  fact  of 
non-delivery  because  the  consignee  could  not  be  found,  and  the  carrier's 
evidence  on  this  point,  see  Witbeck  v.  Holland,  45  N.  Y.  13.  See,  fur- 
ther, South  Alabama  R.  v.  Wood,  71  Ala.  21.5;  66  Ala.  107.  The 
responsibility  for  short  delivery  is  on  the  carrier,  and  the  burden  is  on 
him  if  he  seeks  to  exonerate  himself.  16  Fed.  (U.  S.)  145.  And 
thouji^h  a  special  contract  should  exempt  the  carrier  from  liability  for 
injuries  "from  fire,"  he  may  be  presumed  negligent  if  he  refuses  to  give 
any  information  as  to  hovi  or  where  the  fire  occurred.  87  Penn.  St.  395. 
And  so  generally  may  fault  be  imputed  to  a  carrier  if  he  refuses  all  ex- 
planation of  loss  or  injury.  Kirst  v.  Milwaukee  R.,46  Wis.  489.  Where 
there  is  a  contract  limiting  the  carrier's  liability  to  injuries  caused  by 
negligence,  the  burden  is  on  him  to  show  from  what  cau.se  a  loss  or  in- 
jury occurs.  Shriver  v.  Sioux  City  R.,  24  Minn.  506;  28  Fed.  (U.  S.) 
336. 

But  an  apparent  conflict  in  the  authorities  is  noticeable,  where  goods 
are  lost  under  a  special  contract  of  immunity  from  specified  risks.  Some 
courts  put  the  burden  pretty  strongly  on  the  plaintiff  to  show  the  de- 
fendant's negligence,  such  as  the  special  contract  cannot  relieve.  Others, 
again,  pronounce  it  good  policy  to  iucrea.se  the  carrier's  burden,  so  that  he 
should  show  both  that  the  cause  was  within  the  excepted  risks,  and  that 
he  was  not  negligent  in  respect  thereto,  nor  were  his  agents.  Ante,  384. 
The  difference  of  circumstances  will,  we  think,  help  to  correct  the  dis- 
crepancy. And  it  would  appear  the  better  opinion  that  the  carrier's 
proof  of  exculpation  should  go  so  far  as  to  present,  on  his  part,  some 
particular  occasion  of  loss  or  injury,  such  as  the  common  law  or  his 
special  contract  would  excuse;  which  presentation  of  the  facts,  as  he 
makes  it,  imputes  to  him  and  his  servants  no  culpable  negligence  or 
default;  and  that  having  done  this,  he  need  not  affirmatively  prove  fur- 
ther that  he  was  not  negligent,  but  rather  leave  this  for  the  i>laintiff  to 
establish  if  he  can.  But  specific  acts  of  negligence  being  shown  by  a 
preponderance  of  evidence  against  the  carrier,  he  should  now,  with  his 
better  opportunity  of  ascertaining  the  specific  facts,  disprove  the  charge. 
See  ante,  384.  The  prolonged  controversy  in  the  courts  over  rules  on 
this  point  shows  how  stubbornly  fought  and  how  finely  drawn  are  carrier 
suits  at  the  present  day. 

In  an  action  against  the  carrier  for  non-delivery  of  goods,  although 
the  allegation  is  a  negative  one  if  put  in  issue,  the  burden  of  proof  is 
upon  the  plaintiff,  and  he  must  give  some  evidence  of  non-delivery,  ac- 
cording to  the  obligation  assumed  by  the  carrier,  before  the  latter  is 
required  to  prove  delivery.  Roberts  v.  Cliittenden,  88  N.  Y.  33.  But 
non-delivery  being  shown  as  a  fact,  a  piesumption  of  liability  on  the  car- 


302  THE   LAW   OF   BAILMENTS 

ification  is,  to  a  considerable  extent,  removed  by  modern 
legislation,  which  favors,  on  the  whole,  the  admission  of  all 
interested  parties  to  the  witness-stand,  leaving  to  the  cross- 
examination  of  opposing  counsel,  and  the  equal  opportunity 
for  parties  to  confront  and  contradict  one  another,  the  means 
of  eliciting  the  whole  truth. ^ 

rier's  part  arises,  and  the  burden  is  on  him  to  show  good  excuse  for  non- 
delivery.    15  Fed.  (U.  S.)  686. 

AVhere,  again,  the  carrier  delivers  goods  in  a  damaged  condition,  the 
onus  is  on  him  to  show  that  he  is  not  in  fault,  and  the  injury  being  shown, 
he  is  prima  facie  inculpated.  But  the  plaintiff  must  first  show  the  injury  ; 
and  the  injury  must  be  such,  by  his  presentment  of  the  case,  as  to  exclude 
all  inference  that  the  loss  occurred  otherwise  than  by  the  carrier's  fault. 
Thus,  to  show  that  an  animal  transported  by  vessel  was  delivered  in  a 
sickly  condition  without  external  mark  of  injury,  imputes  nothing  more 
than  the  natural  effect  of  a  voyage  upon  a  feeble  creature,  and  this  does 
not  sufficiently  charge  the  carrier.  3  Woods  (U.  S.),  380;  tliough  the 
special  facts  of  such  condition  might  impute  more.  Dow  v.  Packet  Co., 
84  j\Ie.  490.  And  if  in  a  suit  for  animate  or  inanimate  property  the 
damage  might  as  well  ba  attributed  to  natural  causes  as  to  negligence, 
the  plaintiff  cannot  recover.  Ocean  S.  S.  Co.  v.  McAlpin,  69  Ga.  4o7 ; 
150  Penn.  St.  170  (brittle  goods);  101  Mo.  6:51.  Where,  on  the  other 
hand,  a  bill  of  lading  shows  the  package  to  have  been  in  good  condition 
when  shipped,  and  the  proof  shows  that  the  goods  were  properly  packed, 
and  the  damage  of  a  kind  not  likely  to  have  been  due  to  an  excusable 
peril,  the  burden  is  on  the  carrier  to  account  for  the  injury.  28  Fed. 
(U.  S.)  336  ;  168  Penn.  St.  209.  A  consignee's  receipt  for  the  goods  on 
their  delivery  over,  as  being  in  good  order,  is  prima  facie  evidence  in  the 
carrier's  favor.  Ocean  S.  S.  Co.  4'.  McAlpin,  69  Ga.  437.  And  where 
the  loss  or  injury  was  not  discovered  until  after  the  delivery  over  at  the 
journey's  end,  the  burden  is  on  the  plaintiff  to  show  that  it  must  have 
occurred  before  the  bailment  ended.  Canfield  v.  Baltimore  R.,  75  N.  Y. 
144  (jewelry  abstracted  from  a  box  and  nails  re-driven). 

The  carrier  may  show  that  the  loss  or  injury  proceeded  from  some  non- 
apparent  cause  previous  to  his  reception  of  the  goods;  and  this,  notwith- 
standing the  bill  of  lading  or  other  document  acknowledges  their  receipt 
in  good  condition.  3  Cliff.  (U.  S.)  184.  Such  receipt  being  shown, 
however,  the  carrier  has  the  burden  of  showing  that  the  loss  occurred  after 
he  had  ceased  to  be  carrier.     P)rowning  v.  Trans.  Co.,  78  Wis.  391. 

As  to  defence  of  bad  packing,  see  37  Fed.  (U.  S.)  611. 

No  loss  of  goods  shipped  or  delivered  at  any  other  time  than  that 
alleged  in  the  writ  can  be  admitted  in  proof.     70  Me.  290. 

1  §  578. 


REMEDIES   AGAINST  COMMON  CARRIERS  303 

475.    The  defendant  to  the  action  ex  delicto  pleads,  by  way  of 

general  issue,  "not  guilty,"  or  Avords  of  other  form  which 
amount  to  such  a  plea  ;  and  under  this  general  issue  a  carrier 
may  prove  most  matters  of  defence  allowable  in  action  on  the 
case.  But  "  not  guilty  "  operates  as  a  denial  of  inexcusable 
loss  and  damage,  and  not  of  such  special  matters  as  the  accep- 
tance of  the  goods  by  himself ;  though  a  loss  proximately  by 
act  of  owner  or  customer,  as,  for  instance,  by  the  consignor's 
own  negligence,  ought  apparently  to  be  available  to  the  car- 
rier on  such  a  plea  as  well  as  loss  by  act  of  God  or  of  a  pub- 
lic enemy.i  Where  the  action  is  brought  ex  contractu^  the 
general  plea  "  non  assumpsit "  operates  as  a  denial  of  any  con- 
tract to  the  effect  alleged  in  the  declaration,  and  of  any  such 
bailment  as  would  raise  a  promise  in  law  to  the  effect  claimed 
by  the  plaintiff."  But,  apparently,  the  general  denial  does  not 
here  extend  to  special  matters  in  avoidance  of  liability  upon 
which  the  carrier  means  to  rely,^  Admissions  of  the  carrier, 
or  of  his  servant  acting  within  tlie  scope  of  his  agency,  which 
relate  immediately  to  the  loss  may,  as  part  of  the  res  gestce,  be 
of  much  avail  to  the  plaintiff  ;  ^  while,  on  the  other  hand,  there 
has  been  much  difficulty  found  in  drawing  the  line  between 
those  cases  where,  under  the  old  rules  of  evidence,  a  carrier's 
servant  could,  and  where  he  could  not,  be  admitted  to  testify 
on  his  employer's  behalf,  without  procuring  a  release,  so  as  to 

1  §  579;  5  M.  &  W.  669;  Wyld  v.  Pickford,  8  M.  &  W,  443;  Hoyt  v. 
Allen,  2  Hill  (N.  Y.),  322.     Cf.  3  C  B.  1 ;  6  Scott,  N.  R.  951. 

2  Dale  /'.  Hall,  1  Wils.  281 ;  4  Bing.  N.  C.  314. 

'  See  Houston  R.  ;•.  Ham,  44  Tex.  628,  where  the  cairier  meant  to  rely 
specially  upon  the  plaintiff's  release  of  the  contract  for  shipment  of  the 
articles,  or  only  a  partial  loss  And,  as  to  a  limitation  under  his  special 
contract,  see  Westcott  i'.  Fargo,  61  N".  Y.  542. 

*  Kirkstall  Brewery  Co.  c.  Furneas  R.,  L.  R.  9  Q.  B.  468,  and  cases 
cited;  Burnside  v.  Grand  Trunk  R.,  47  N.  H.  5.54;  6  Gray  (Mass.),  4.30; 
Lane  v.  Boston  &  Albany  R.,  112  Mass.  455.  Where  the  acts  of  the  agent 
will  bind  his  principal,  there  his  representations,  declarations,  and  admis- 
sions respecting  the  subject-matter  will  also  bind  him  if  made  at  the  same 
time,  and  constituting  a  part  of  the  re^  geslce.  §  579;  Story  Agency, 
§  134.  But  not  loose  general  admissions  against  the  carrier  who  employs 
him.     140  Mass.  510. 


304  THE   LAW  OF   BAILMENTS 

make  sure  that  the  carrier,  if  held  liable  to  the  customer,  would 
not  turn  round  and  sue  him  personally.^ 

476.  On  the  principle  of  necessity,  the  usual  rule  of  disqualifi- 
cation has  been  relaxed  in  the  loss  of  some  trunk  or  closed 
receptacle  with  its  contents,  where  only  the  plaintiff  or  party 
in  interest  can  disclose  what  those  contents  were,  and  the  cir- 
cumstances in  connection  with  the  bailment  and  the  original 
contract  fail  to  establish  the  fact.  As  to  the  extent  of  this 
exception,  however,  the  authorities  are  not  clear  and  harmoni- 
ous ;  though,  independently  of  legislation,  the  better  authority 
tends  to  confine  it  to  cases  wliere  no  other  certain  testimony, 
less  ex  parte  in  character,  is  accessible.  In  the  bailment  of 
freight  in  large  amount  and  of  considerable  value,  under  a  bill 
of  lading  or  other  similar  document,  the  recitals  of  the  instru- 
ment evince  the  mutual  understanding  on  this  point ;  and  in 
general  the  application  of  the  rule  to  freight  must,  at  best,  be 
quite  a  narrow  one.^ 

477.  As  to  the  sufficiency  of  evidence,  if  there  be  some  evi- 
dence which  tends  to  prove  all  the  material  allegations  on  the 
plaintiff's  part,  the  sufficiency  thereof  is  usually  to  be  left  to 
the  discretion  of  the  jur}'-,  our  courts  being  disposed  to  favor 
the  consignor  or  consignee,  upon  even  slight  proof  of  material 
facts  not  disproved  by  the  other  party ;  but  where  there  is  a 
fatal  variance  between  the  proof  and  the  allegations,  or  where 
there  is  no  evidence  whatever  on  some  material  point  necessary 
to  be  proved  in  order  to  make  out  the  cause  of  action,  the 
court,  on  motion  of  the  defendant,  should  order  a  non-suit.^ 
Where  evidence  of  the  carrier's  negligence  is  conflicting  the 

^  §  579  ;  Moran  v.  Portland  Steam  Packet  Co.,  3o  JNIe.  55;  Bailey  v. 
Shaw,  4  Fost.  CN.  H.)  297;  and  see  ih.,  as  to  the  owner  qualifying  by  a 
release  to  plaintiff  under  the  old  rule. 

2  §  580;  2  C.  &  P.  613;  Doyle  v.  Kiser,  6  Ind.  242;  Wright  v. 
Caldwell,  1  Mich.  51 ;  Adams  Express  Co.  v.  Haynes.  42  111.  89  (not 
to  apply  at  all  to  the  transportation  of  freight);  6  W.  &  S.  (Penn.) 
495;  22  111.  278;  12  Ga.  217;  Part  VII.  c.  4,  where  the  rule  is  applied 
to  baggage. 

8  §  581 ;  1  Cal.  108  ;  116  Mass  97;  Lane  v.  Boston  &  Albany  R..  112 
Mass.  455;  Deming  v.  Kailroad,  48  N.  H.  455. 


REMEDIES   AGAINST  COMMON   CARRIERS  305 

court  will  not  set  forth  rules  as  supposing  certain  facts  were 
proved,  but  submit  all  the  evidence  to  the  jury.i  Proof  of 
actual  payment,  or  of  an  express  promise  to  pay,  freight  on 
the  goods,  is  not,  in  general,  requisite  in  order  that  one  may 
maintain  his  suit  against  the  carrier ;  for  the  willingness  to 
pay  is  readily  presumed.^  And  on  the  more  formal  points 
slight  evidence  will  often  suffice  to  make  out  one's  prima  facie 
case  against  the  carrier.^ 

478.  (6)  Concerning  the  damages  recoverable  against  the 
carrier  in  suits  for  loss  or  injury  on  the  transportation.  The 
principle  is  that  the  plaintiff  or  rightful  party  must  be  fully 
indemnified  against  such  pecuniary  damage  as  he  sustains  by 
the  carrier's  inexcusable  breach  of  duty  or  of  contract,  so  far 
as  this  damage  is  consequential  upon  the  carrier's  undertaking 
in  question  by  a  reasonable  construction  of  its  terms.  Hence, 
the  general  measure  of  damages,  in  case  of  such  loss  or  injury 
by  the  carrier,  is  the  value  of  the  goods  at  the  place  of  in- 
tended delivery  at  the  time  they  should  have  been  delivered ; 
and  market  value  is,  apart  from  contract,  the  common  test  of 
value.*     Whether  the  suit  be  framed  ex  contractu  or  ex  delicto 

1  Aigen  i\  Boston  &  Maine  R.,  132  Mass.  423;  128  Mass.  221  ;  Balti- 
more R.  I'.  Keedy,  75  Md.  320.  Leaxang  the  jury  thus  to  ascertain  the 
facts,  the  court  may  rule  what  the  liability  would  be  in  case  certain  facts 
were  found  by  them.     48  Kan.  321. 

2  Hall  V.  Cheney,  3G  N.  H.  26  ;  6  Har.  &  J.  (Md.)  394. 

3  Chicago  R.  V.  Dickinson,  74  111.  249. 

*  §  582;  Ringgold  i\  Haven,  1  Cal.  108;  Parmelee  v.  Fischer,  22  111. 
212;  Hackett  v.  Boston  R.,  3.3  N.  H.  390;  Dean  v.  Vaccaro,  2  Head 
(Tenn.),  488  ;  Peet  v.  Chicago  R.,  20  Wis.  594  ;  Sherman  v.  Hudson  River 
R.,  64  N.  Y.  255.  This  principle  is  applied  where  gold  coin  is  lost  at  a 
time  when  it  commands  a  premium  in  the  market.  98  Mass.  550.  Puni- 
tory damages  are  not,  in  general,  allowable  in  suits  of  the  present  char- 
acter, unless  positive  misconduct  appears.  Toledo  R.  v.  Roberts,  71  111. 
.540  ;  Wall  v.  Cameron,  6  Col.  275.  Under  counts  against  the  carrier 
merely  as  carrier  or  bailee,  the  plaintiff  cannot  recover  for  losses  specially 
resulting  from  the  misrepresentation  or  deceit  of  the  carrier's  agent. 
Maslin  d.  Baltimore  R.,  14  W.  Va.  ISO;  Mitchell  v.  Georgia  R.,  68  Ga. 
644  ;  44  Ark.  439. 

As  to  damages  under  a  contract  limiting  the  amount  for  so  much  per 
box,  package,  etc.,  see  93  111.  523.     A  just  valuation  in  case  of  loss  might 

20 


306  THE   LAW  OF  BAILMENTS 

the  same  general  rule  applies,  and  the  measure  of  damages  is 
equally  within  the  control  of  the  court.^  Where  goods  are 
delivered  but  not  in  good  condition,  the  carrier  is  liable  for 
the  difference  between  their  actual  market  value  at  the  time 
and  place  of  delivery,  and  the  sum  which  would  represent  their 
value  were  they  delivered  uninjured.''^  For  negligent  delay 
and  culpable  default  in  transporting  the  goods,  so  that  there 
is  a  loss  incurred  by  their  depreciating  in  value,  the  measure 
of  damaofes  ao-ainst  the  carrier  is  the  difference  between  the 
value  of  the  goods  to  the  owner  or  proper  party  at  the  place 
of  intended  delivery  at  the  time  they  ought  to  have  arrived, 
and  their  value  at  the  time  they  in  fact  arrived,^  a  reasonable 
time  being  allowed  for  their  delivery.*  The  carrier's  un- 
reasonable delay  in  delivering  the  goods  is  no  defence  to  his 
action  for  freight,  without  some  proof  of  the  damage  thereby 
sustained;  such  as  their  fall  meantime  in  the  market  value ; 
though  for  actual  and  proximate  damage  occasioned  by  his 
unreasonable  and  unexcused  delay,  the  carrier  may  doubtless 
be  held  answerable.^ 

be  imposed  by  contract  in  advance;  or  a  reasonable  limit  to  the  time  of 
making  claims  for  damages.  Ante,  366,  367.  Cf.  23  Wend.  (N.  Y.)  306 
(accepting  goods  at  intermediate  point);  5  Bosw.  (N.  Y.)  625  (as  to  loss 
before  the  transportation  commences) ;  48  Barb.  (N.  Y.)  127. 

1  Baltimore  R.  v.  Pumphrey,  59  Md.  390. 

2  Jellett  V.  St.  Paul  R.,  30  Minn.  26.5;  23  Fed.  (U.  S.)  463;  29  Fed. 
(U.  S.)  530. 

3  Proof  of  partial  delivery  goes  only  in  mitigation  of  damages  by  way 
of  defence.  ,44  Tex.  628;  Deming  v.  Railroad,  48  N.  H.  455 ;  4  Harring. 
(Del.)  448;  13  Allen  (Alass.),  381;  Ward  v.  New  York  Central  R.,  47 
N.  Y.  29 ;  Texas  R.  v,  Nicholson.'HTTex  491  :  40  Ark.  485 ;  Newell  v. 
Smith,  49  Vt.  255,  266,  per  Powers,  J. ;  Scott  v.  Boston,  &c.  Steamship 
Co.,  106  Mass.  468;  81  Ga.  602  ;  Weston  v.  Grand  Trunk  R.,  54  Me.  376; 
Devereux  v.  Buckley,  34  Ohio  St.  16. 

4  See  Sherman  v.  Hudson  River  R.,  64  N.  Y.  2.54;  ^2  Tex.  104. 

If  no  market  at  the  point,  an  approximate  calculation  is  made.  85 
Tenn.  69.  And  the  first  market  day  possible  after  the  arrival  of  animals 
unreasonably  delayed  may  serve  as  a  standard.     157  U.  S.  124. 

6  1  Holmes  (U.  S.),  232,  ante,  322.     And  see  51  Ark.  22  ;  85  Ga.  497. 

Special  items,  such  as  advance  freight  or  insurance  premiums  paid,  or 
special  telegrams  and  correspondence  are  sometimes  allowable.     61  Fed. 


REMEDIES   AGAINST   COMMON   CARRIERS  307 

479.  But  the  rule  of  damages  against  the  carrier  awards  only 
such  damages,  in  favor  of  tlie  aggrieved  consignor  or  owner,  as 
the  contract  or  the  circumstances  of  the  particular  baihnent 
fairly  contemplated  as  the  natural  result  of  such  delinquency 
and  non-fullilment.  And  hence,  if  the  article  be  desired  for 
some  special  purpose,  so  as  to  render  the  loss,  injury,  or  de- 
layed carriage  of  the  thing  unusually  disastrous  to  the  party 
entitled,  the  fact  ought  to  have  been  specially  stated  or  noti- 
fied at  the  outset,  so  as  to  form  part  of  the  mutual  agreement 
for  transportation,  else  the  plaintiff  cannot  afterwards  claim  to 
have  it  enter  as  an  element  into  the  computation  of  damages.^ 
But,  subject  to  this  duty  on  the  customer's  part,  he  may  re- 
cover for  special  damage  where  the  special  responsibility  was 
properly  and  seasonably  brought  home  to  the  carrier  so  as  to 
form  part  of  the  original  contract.^  And  there  are  certain 
special  damages  which  without  special  notice  to  the  carrier 

(U.  S.)  860.  As  to  interest  from  date  of  demand,  etc.,  if  needful  to  make 
plaintiff  whole,  see  §  582;  4  Allen  (Mass.),  112  ;  Newell  v.  Smith,  49  Vt. 
255;  45  Iowa,  470;  Muirell  v.  Dixey,  14  La.  An.  298;  13  Mo.  352. 

1  §  683;  Hadley  v.  Baxendale,  9  Ex.  341 ;  L.  R.  1  C.  P.  329;  Woodger 
V.  Great  Western  R.,  L.  R.  2  C.  P.  318  ;  54  Ark.  22;  Chicago  R.  i:  Hale, 
83  111.  360;  U.  S.  Express  Co.  v.  Root,  47  Mich.  231  (claim  by  reason 
of  delay  in  receiving  a  package  of  posters  which  were  sent  by  express)  ; 
Mather  v.  American  Express  Co.,  138  Mass.  55  (damages  for  the  carrier's 
loss  of  an  architect's  plans  confined  to  replacing  them).  Injury  to  the 
plaintiff's  business,  by  reason  of  non-delivery,  is  too  remote  for  considera- 
tion, per  se,  in  assessing  damages.  Baltimore  R.  v.  Pumphrey,  59  Md. 
390.  And  unless  a  carrier  has  been  notified  of  the  urgent  necessity  for 
prompt  carriage,  his  negligent  delay  renders  him  liable  only  for  the  usual 
and  ordinary  damages.  §2  Tex.  639.  See  19  Q.  B.  D.  30  (damage  in  loss 
of  samples). 

"Wliere  damages  are  merely  nominal,  only  nominal  damages  will  be 
awarded.  See  1  Woods  (U.  S.),  131,  as  to  a  carrier's  misdelivery  to  one 
who  delivered  promptly  to  the  right  party.  Where  by  bad  stowage  the 
article  is  wholly  spoiled  for  commeicial  purposes,  the  carrier  is  liable 
accordingly.  16  Blatchf.  516  (sacks  of  salt  placed  near  powdered 
arsenic). 

2  lb.  See  L.  R.  3  C.  P.  499;  Cutting  ;;.  Grand  Trunk  R.,  13  Allen 
(Mass.),  381;  48  N.  H.  455  ;  31  Kan.  385;  Grindle  v.  Eastern  Express 
Co.,  67  Me.  317  ;  Illinois  Cent.  R.  v.  Southern  Co.,  104  Tenn.  568  (pen- 
alty under  consignee's  contract  with  another) ;  75  Ga.  745 ;  48  Ark.  502. 


308  THE   LAW   OF   BAILMENTS 

may  be  deemed  incidental  to  his  undertaking.^  Certain  arti- 
cles, as,  for  instance,  wearing-apparel  and  family  relics,  are 
not  fairly  compensated  by  a  rule  of  damages  which  is  deduced 
from  the  computation  of  market  rates,  so  that  actual  value 
to  the  owner  must  be  computed  by  other  evidence.^ 

479  a.  Where  the  carrier  pays  or  settles  'writh  the  owner  as  for 
a  total  loss  of  the  goods  transported,  the  property  therein  be- 
comes in  law  and  conscience  transferred  to  him,  and  inures  to 
his  benefit.^  So,  too,  where  tire  carrier  is  sued  for  damage  to 
the  goods,  his  proper  allowance  for  freight  is  a  fair  offset ;  and 
if  he  settles,  as  for  a  total  loss  or  conversion  of  goods  which  have 
disappeared,  he  ought  to  have  his  full  recompense  deducted.* 

480.  III.  Where  the  carrier  acts  negligently  or  -wrongfully 
in  delivering  the  goods  over  after  his  transit  is  completed. 
What  has  been  said  under  the  preceding  subdivision  of  this 
chapter  may  furnish  tlie  guiding  principles  where  a  remedy  is 
sought  in  the  present  instance.  Any  complaint  against  the 
carrier  for  injury  to  the  goods  while  on  the  transit  and  also 
after  the  transit  has  ended,  under  one  continuous  possession, 
states  one  and  the  same  continuous  cause  of  action.^  So,  too, 
may  the  failure  of  the  carrier  to  deliver  goods  on  demand  be 

Speculative  profits,  peculiar  to  a  plaintiff's  business  and  unknown  to  the 
carrier,  should  not  be  reckoned.     3  Wall.  Jr.  (U.  S.)  229. 

^  Thus,  where  cattle  are  transported  for  breeding  purposes,  death  or 
the  miscarriage  of  animals  already  pregnant,  which  is  caused  by  the  car- 
rier's careless  collision,  may  be  deemed  an  incidental  damage  of  such 
transportation.  New  York  R.  v.  Estill,  147  U.  S.  591.  And  see  as  to 
loss  of  crude  turpentine  from  negligent  delivery  of  a  still-worm,  77  Ga. 
412. 

2  Denver  R.  v.  Frame,  6  Col.  382.  r.f^m  Tav  .^nO,  For  this  rule,  as 
applied  to  lost  bagfjage,  see  post,  Part  VIT.  c.  4.  And  see  Green  v.  Boston 
&  Lowell  R.,  128  Mass.  221  (loss  of  a  family  portrait,  with  damages  en- 
hanced because  it  was  the  only  one  and  could  not  be  replaced).  The  cost 
of  replacing  or  reproducing,  if  possible,  should  be  considered.  58  S.  W. 
91SrTey_Civ.  Ann.  190^. 

3  §584";  llagerstown  Bank  v.  Adams  Express  Co.,  45  Penn.  St  419. 

4  iAIass.  Trust  Co.  v.  Fitchburg  R.,  143  Mass.  318;  Miami  Co.  v.  Port 
Royal  R.,  38  S.  C.  78. 

As  to  the  customer's  set-off,  etc.,  against  the  carrier,  see  ante,  430. 
s  Armstrong  v.  Chicago  R.,  45  Minn.  85. 


REMEDIES  AGAINST  COMMON  CARRIERS  309 

treated  as  a  breach  of  his  original  contract,  even  though  the 
loss  occurred  while  they  were  stored  after  arrival.^  But  the 
rule  itself  may  have  a  peculiar  application :  as  in  the  case 
where  the  goods  arrive  safely,  but  the  carrier  neglects  his 
duty  in  respect  of  notifying  or  trying  to  find  the  consignee, 
and  meanwhile  tliey  spoil  or  depreciate  in  market  value  ;2  or 
where  he  unreasonably  delays  or  i^efuses  to  make  such  deliv- 
ery as  liis  undertaliing  bound  him  to  make,^  or  malces  a  mis- 
delivery.* So  may  a  carrier  who  has  performed  his  public 
duty  be  held  responsible  on  the  footing  of  a  warehouseman  or 
lesser  bailee.^ 

481.  That  payment  of  freight  is  due,  on  the  one  hand,  -when 
the  goods  reach  their  destination,  and  a  delivery  to  the  proper 
party  on  tlie  other,  so  that  neither  party  can  demand  priority 
of  performance,  we  have  already  seen ;  and  hence  that  as- 
sumpsit for  the  carrier's  breach  of  contract  may  lie  wliere  the 
consignee  has  put  him  in  the  wrong,  or  even  trover,  as  for  an 
act  of  conversion.*^  But  replevin  may  sometimes  be  the  more 
convenient  means  of  getting  possession  of  the  goods,  and 
determining  the  true  title,  where  the  carrier  wrongfully  re- 
fuses to  give  up  the  goods ; ''  which  form  of  action,  however, 
is  not  in  theory  well  applied  to  the  mere  unjust  detention  of 
goods  received  and  held  on  a  contract.^  A  carrier's  conversion 
renders  him  absolutely  liable  for  the  safety  of  the  goods,  as 
one  no  longer  a  rightful  bailee.^ 

482.  An  acceptance  of  goods  in  w^hole  or  in  part,  by  the  owner, 
short  of  the  place  of  delivery  originally  intended,  bars  his  action 

1  §  585;  Wilson  v.  California  R.,  94  Cal.  166. 

2  Zinn  V.  New  Jersey  Steamboat  Co.,  49  N.  Y.  442. 

3  See  Chicago  TTi-.  Stanbro,  87  111.  195. 

*  For  the  measure  of  damages,  where  the  carrier  wrongfully  refused 
delivery,  see  4  Fed.  (U.  S.)  548.  And  see  Mass.  Trust  Co.  v.  Fitchburg 
R.,  14:]  Mass.  318;  1  Woods  (U.  S.),  131. 

5  See  Anderson  v.  North-Eastern  R.,  9  W.  R.  519. 

6  §  585 ;  ante,  449,  450.  "'  ' 

■^  Dyer  u.  Grand  Trunk  R.,  42  Yt.  441 ;  Boston  R.  i'.  Brown,  15  Gray 
(Mass.),  223. 

8  §  585. 

9  Richmond  R.  v.  Benson,  86  Ga.  203. 


310  THE   LAW   OF   BAILMENTS 

against  the  carrier  for  all  damage  or  loss  thereto  subsequently 
occasioned ;  but  such  acceptance  constitutes  no  bar  to  his 
action  for  their  inexcusable  loss  or  damage  if  occasioned  pre- 
viously.i  And,  in  general,  the  mere  acceptance  of  goods  by 
the  consignee  or  owner,  or  any  lawful  retaking  of  the  same 
from  the  carrier  by  the  proper  party  before  or  at  the  time  and 
place  when  the  transit  is  completed,  does  not  estop  him  from 
claiming  damages ;  nor  does  his  payment  of  freight  or  sub- 
mission to  a  judgment  therefor ;2  for  nothing  short  of  are- 
lease,  on  his  part,  or  full  satisfaction,  can  thus  operate  upon 
his  right  of  action.^ 

483.  "Where  the  carrier  makes  extortionate  or  illegal  charges, 
either  in  advance  of  carriage  or  at  the  termination  of  the  tran- 
sit, the  party  entitled  to  due  performance,  who  pays  the  same 
under  protest,  may  sue  for  the  unlawful  excess  in  an  action 
for  money  had  and  received.*  Indeed,  it  is  held  that  the  in- 
jured party  need  not  even  have  paid  under  protest,  so  long  as 
he  did  not  voluntarily  submit  to  t]ie  extortion.^  But  a  bill  in 
equity  to  recover  overcharges  is  not  maintainable.'' 

484.  A  conflict  of  laws  may  occur  in  the  pursuit  of  remedies, 
by  or  against  a  carrier.  When  a  contract  is  made  in  one  State 
or  country  to  transport  goods  over  a  line  extending  through 
two  or  more  States  or  countries,  and  loss  or  injury  occurs,  it 

1  23  Wend.  (X.  Y.)  306;  Lowe  v.  Moss,  12  111.  477 ;  Cox  v.  Peterson, 
30  Ala.  608;  Atkisson  v.  Castle  Garden,  28  Mo.  124. 

2  Sch winger  v.  Raymond,  83  N.  Y.  192. 

^  §  586.  And  see  supra,  c.  6.  One  may  pay  freight  and  sue  for 
damages,  or  set  up  his  damages  by  way  of  counter-claim  in  an  action  to 
recover  the  freight,  or  he  may  bring  a  cross-action.  Schwinger  v.  Ray- 
mond, 83  N.  Y.  192. 

4  Great  Western  R.  v.  Sutton,  L.  R.  4  II.  L.  Cas.  226;  1  B.  &  S.  112. 
See  Wilson  v.  Harry,  32  Penn.  St.  270. 

5  §  587;  Ileisermau  v.  Burlington  R.,  63  Iowa,  732.  Cf.  100  N.  Y. 
194,  where  payment  was  made  without  objection.  See  local  P^nglish  and 
American  legislation  as  to  unfair  and  excessive  charges,  etc. 

6  Not  even  though  several  companies  are  thus  liable.  Scott  v.  Erie 
R.,  34  N.  J.  Eq.  354.  If  a  carrier  charges  extortionately  and  refuses  to 
deliver,  the  consignee  who  tenders  freight  money  is  not  bound  to  keep 
his  tender  good.     East  Tennessee  R.  v.  Hunt,  15  Lea  (Tenn.),  261. 


REMEDIES  AGAINST  COMMON  CARRIERS  311 

is  held  that  the  rights  of  the  parties  will  be  governed  by  the 
laws  of  the  State  or  country  where  the  loss  or  injury  happened.^ 
But  as  a  general  rule,  a  personal  contract  is  supposed  to  have 
been  entered  into  with  reference  to  the  law  of  the  place  where 
made ;  and  if  formalities  are  there  requisite  to  give  it  validity, 
those  formalities  must  have  been  observed ;  for  the  law  of  the 
place  of  contract  determines  the  right.^  On  the  other  hand, 
the  law  of  the  place  where  the  action  is  brought  generally 
regulates  the  remedy;  and  hence  prescribes  the  modes  of 
proof  by  which  the  terms  of  the  contract  are  made  known  to 
the  court,  as  well  as  the  form  of  the  action  by  which  it  shall  be 
enforced.^  But  the  law  of  the  place  of  performance  must  fre- 
quently determine  the  mode  of  fulfilling  such  a  contract,  and 
the  measure  of  liability  for  its  breach.* 

1  49  N.  H.  9;  Gray  v.  Jackson,  51  N.  H.  9. 

2  Milwaukee  R.  v.  Smith,  74  III.  197;  Fairchild  v.  Philadelphia  R., 
148  Penn.  St.  527. 

8  Colt,  J.,  in  Hoadley  v.  Northern  Trans.  Co.,  115  Mass.  304.  In  this 
case,  the  forum  of  the  remedy  was  held  to  determine  what  should  be  evi- 
dence of  the  assent  of  the  shipper  to  a  bill  of  lading;  though  this  decision 
in  effect  nullified  the  law  of  the  State  where  the  contract  was  made.  See' 
also  111  Mass.  45. 

*  Brown  r.  Camden  R.,  83  Penn.  St.  316.  A  contract  which  limits 
the  carrier's  liability,  must,  if  valid  where  made,  be  upheld  in  the  State 
where  the  loss  occurred.     82  Iowa,  477.     And  see  §  588. 


Ui 


s 


CHAPTER  ix. 

CONNECTING  CARRIERS, 

485.  A  topic  ■which  involves  at  this  day  problems  of  great 
intricacy  remains  for  a  special  investigation.  The  law  of  con- 
necting carriers  absorbs  the  principles  set  forth  in  our  preced- 
ing chapters,  and  then  leads  us  into  a  deeper  labyrinth,  where 
the  aspect  of  liability  presented  is  that  of  two  or  more  adjoin- 
ing lines  engaged  in  some  continuous  transportation  of  goods 
and  chattels.  What  reciprocal  rights  and  responsibilities  as 
between  carrier  and  customer  pertain  peculiarly  to  this  con- 
necting and  continuous  transportation,  this  chapter  will  con- 
sider; and  we  may  premise  that  American  States  have 
formulated  independent  rules  under  this  head  so  greatly  at 
variance  with  one  another  and  with  English  precedent  as  seri- 
ously to  embarrass  the  private  individual  who  seeks  redress 
for  loss  or  injury.  By  the  process,  however,  of  lease  and  con- 
solidation during  the  past  few  years,  this  problem,  with  others, 
has  sought  its  own  practical  solution,  through  the  combination 
of  connecting  inland  carriers  by  railway  and  steamer  into  trunk 
lines  of  lessening  number  and  increasing  magnitude,  so  as  to 
supplant,  if  possible,  by  a  single  responsible  and  economical 
management  the  control  which  was  formerly  diffused  among 
various  companies  independent  of  one  another.  For  while  a 
carriage  monopoly  badly  directed  is  a  sure  curse  to  the  com- 
munity, a  well-directed  one  may  prove  no  less  a  blessing ;  and 
in  taking  our  chances  between  the  two  we  gain  at  least  the 
advantage  of  concentrating  the  public  vigilance  upon  more 
definite  objects.^ 

486.  The  nature  of  this  carriage  by  connecting  routes  brings 
familiar  principles  into  view  associated  with  the  responsible 

^  §  589.     See  c.  10,  jiost,  as  to  national  regulation  of  the  subject. 


CONNECTING   CARRIERS  313 

calling  of  a  common  carrier.^  In  fact,  our  doctrine  of  connect- 
ing carriers,  in  the  new  and  enormous  business  traffic  by  land 
and  water  to  which  steam  transportation  has  given  rise  during 
this  nineteenth  century,  extends  the  general  doctrines  of  part- 
nership and  agency,  which  courts,  English  and  American, 
applied  to  stage-coaching  arrangements,  more  simple  but  simi- 
lar, some  eighty  or  a  hundred  years  ago.^  At  the  present  day, 
where  railroad  and  other  steam  carriers  connect  on  a  con- 
tinuous route,  the  doctrine  of  agency  supplements  that  of 
partnership  in  determining  the  nature  and  limits  of  each  car- 
rier's liability.  We  may  assume  that  if  a  carrier  company 
which  owns,  by  consolidation,  or  is  the  responsible  lessee  of 
various  connecting  carriage  routes,  undertakes  a  transporta- 
tion, this  company  is  essentially  the  only  carrier  for  the  entire 
distance.  Or,  again,  if  there  be  a  partnership  of  carriers,  —  a 
relation  less  strictly  to  be  affirmed  of  companies  than  of  indi- 
viduals, —  the  partners  are  liable  together  by  reason  of  their 
community  in  traffic.  But  once  more,  to  take  the  status  of 
the  case  as  usually  presented,  the  doctrine  of  agency  applies 
to  a  through  carriage.  And  here  the  earlier  who  receives 
goods  and  chattels  for  some  point  beyond  his  own  terminus 
takes  the  property  (1)  as  a  principal  who  employs  the  con- 
necting carriers  as  his  own  agents,  and  tlius  makes  himself 
responsible  for  the  whole  distance  ;  or  else  (2)  as  the  agent  of 
himself  and  the  connecting  carriers,  namely,  so  as  to  be  princi-: 
pal  and  responsible  bailee  for  his  own  route  only ;  each  con- 
necting carrier  being  in  like  manner  a  principal  and  responsible 
bailee  for  his  share  of  the  journey.^ 

487.  The  main  consideration  in  determining  the  true  status  of 
a  connecting  carrier,  as  among  the  foregoing  theories,  is  this ; 

^  We  have  seen  that  the  responsible  party  who  undertakes  the  trans- 
portation must  always  be  considered  ;  and  also  the  principal,  as  distin- 
guished from  the  mere  agent  or  employe  of  a  carrier.     Ante,  288. 

-  §690;  Waland  v.  isikins,  1  Stark.  272;  Fairchild  v.  Slocum,  19 
Wend.  (N.  Y.)  329  ;  s.  c.  7  Hill,  292. 

^  §  590.  One  may,  without  being  a  responsible  carrier  at  all,  offer 
himself  as  agent  of  various  connecting  carriers  who  must  severally  answer 
for  losses  on  their  own  Hues;  being  himself  a  mere  forwarder  and  no 
carrier.     Jb. 


314  THE  LAW   OF  BAILMENTS 

how  did  the  carrier  hold  himself  out,  or  permit  himself  to  be 
held  out,  to  the  public  ?  And  this  is  a  consideration  which 
fundamentally  obtains  whether  of  the  partnership  or  agency- 
relation.  For  though  a  dormant  or  secret  partner  or  an  un- 
disclosed principal,  when  discovered,  may  be  sued  by  an  injured 
party,  it  is  a  familiar  principle  that  one  who  offers  or  allows 
himself  to  be  offered  as  a  partner  or  principal  must  abide  the 
consequences,  and  cannot  shield  himself  against  the  claims  of 
those  who  contracted  upon  the  faith  of  such  offer  by  setting 
up  any  private  and  secret  arrangements  of  his  own  with  the 
parties  who  used  his  name,  by  way  of  disputing  or  modifying 
his  open  risks.  For  such  arrangements  avail  only  as  among 
the  parties  themselves  and  those  in  privity  with  the  arrange- 
ment. Inasmuch  as  an  undisclosed  principal  or  a  secret  part- 
ner, who  was  such  in  point  of  fact,  is  liable  to  the  public  on 
general  principle,  because  of  his  community  of  interest,  an 
arransfement  between  connecting'  carriers  in  the  nature  of  a 
partnership  or  a  mutual  agency  may  be  shown  to  charge  a 
carrier  for  losses  which  occur  outside  his  own  route,  and  for 
which  he  assumed  no  direct  or  positive  relation  towards  the 
customer.  But  while  arrangements  of  this  kind  are  some- 
times exposed  in  the  courts,  more  especially  for  confirming  a 
liability  which  other  evidence  tended  to  fasten  immediately 
upon  such  a  carrier,  as  of  a  party  held  out  in  a  measure  for 
the  undertaking  by  his  own  permission,  they  are  treated  with 
disfavor  where  the  carrier  afforded  no  such  reliance  to  the 
customer  when  the  transportation  was  undertaken.  Such 
private  arrangement,  or,  indeed,  any  special  contract  by  one 
carrier  to  transport  over  other  lines  must,  at  all  events,  be 
established  by  proof.  And  what  the  law  favors  in  all  such  con- 
troversies is  liability,  first  of  all,  for  a  loss  occasioned  on  one's 
own  route,  and  while  the  goods  were  in  one's  own  possession ; 
next,  liability  on  another,  and  especially  the  receiving  route, 
when  a  through  liability  was  clearly  assumed  by  such  carrier.^ 

1  §  591.  See  Insurance  Co.  v.  Railroad  Co.,  14  Otto  (IT.  S.),  14f);  1 
McCr.  (U.  S.)  312;  Aigeu  v.  Boston  &  Maine  R.,  V.i2  Mass.  423;  Whit- 
worth  r.  Erie  R.,  87  N.  Y.  413 ;  St.  Paul  R.  c.  Minneapolis  R.,  2G  Miun. 
243;  21  Fed.  (U.  S.)  25. 


CONNECTING  CARRIERS  315 

488.  As  to  partnership  arrangements  it  may  be  generally 
stated  that  where  carriers  associate  together,  without  taking  a 
common  name  or  entering  into  a  close  communit}^  of  profits, 
but  with  the  purpose  merely  of  transporting  through  freights 
and  dividing  the  receipts  in  prescribed  proportions  according 
to  distance,  they  do  not  constitute  a  partnership,  nor  are  they 
jointly  liable  for  loss  or  injury  occurring  to  the  goods  trans- 
ported.^  Not  even  the  advertisement  of  the  connecting 
carriers  as  forming  a  line  under  a  common  name  and  the  em- 
ployment of  a  conmion  agent  will  sufficiently  charge  them  as 
partners  to  the  public.^  But  where  several  carrier  companies 
having  connecting  lines  between  two  points  form  an  associa- 
tion under  a  specified  name,  for  the  carriage  of  goods  from 
one  point  to  the  other,  and  their  agent  duly  authorized  re- 
ceives goods  and  gives  a  bill  of  lading  in  the  name  of  that 
association,  they  are  partners,  so  far  as  the  customer  is  con- 
cerned, and  may  be  held  liable  jointly  and  severally  for  any 
loss  occurring  in  the  transportation ;  supposing,  of  course,  no 
special  terms  in  the  bailment  impose  a  different  liabilit}'.^  On 
the  whole  this  onerous  partnership  of  railroads  is  not  readily 
affirmed.* 

489.  Through  contracts  of  freight  are  permissible :  and  railway 
and  other  transportation  companies  have  undoubtedly  at  the 
present  day  the  power,  unless  forbidden  by  their  charters,  to 
contract  for  transportation  through  an  entire  distance,  beyond 

1  §592;  Insurance  Co.  v.  Railroad  Co.,  14  Otto  (U.  S.),  146;  Plot 
Springs  R.  v.  Trippe,  42  Ark.  46.5;  Darling  v.  Boston  &  Worcester  R.,  11 
Allen  (Mass.),  295.  And  see  Wehraann  v.  Minneapolis  R.,  58  Minn.  22; 
St.  Louis  R.  V.  Neel,  56  Ark.  279  ;  Gass  v.  jSIew  York,  &c.  R.,  99  JNIass. 
220. 

■^  4  Woods  (U.  S.),  268.  Here  there  was  no  community  in  profits  or 
los.ses,  nor  common  use  of  vehicles,  and  the  bill  of  lading  issued  was  in 
the  name  of  the  associated  carriers  alone. 

3  Block  V.  Fitchburg  R.,  139  Mass.  308 ;  104  Mass.  122.  And  see  4 
McCr.  (U.  S.)  368  ;  4  Mo.  App.  35. 

*  §  592.  See  further.  Gill  v.  Manchester  R.,  L.  R.  8  Q.  B.  186;  Swift 
V.  Steamship  Co.,  106  N.  Y.  206;  102  Mass.  557;  49  N.  Y.  9;  22  Wall. 
(U.  S.)  123  (mutual  agency  or  partnership  established).  See  also  Wilson 
V.  Harry,  32  Penn.  St^  270 ;  25  Wis.  241. 


316  THE   LAW   OF   BAILMENTS 

their  own  routes,  and  over  any  connecting  lines.  Such  is  the 
well-settled  rule,  both  in  the  United  States  and  in  England.^ 
In  such  a  case  the  company  is  liable  in  all  other  respects  upon 
the  other  lines  as  upon  its  own ;  and  the  public  has  a  right  to 
assume  that  the  contracting  company  has  made  all  the  arrange- 
ments necessary  to  the  proper  fulfilment  of  the  obligations  it 
thus  assumes.^  Carriers,  to  speak  more  generally,  whether 
natural  or  legal  persons,  may  so  bind  themselves  to  deliver 
goods  and  chattels  beyond  the  strict  limits  of  their  line  as  only 
to  exonerate  themselves  by  a  safe  carriage  through  the  entire 
journey."  Nor  is  such  a  contract  when  made  by  a  chartered 
company  to  be  presumed  ultra  vires.  Corporations  are  sup- 
posed to  contract  within  their  just  powers  ;  and  the  doctrine  of 
ultra  vires.,  when  invoked  for  or  against  a  corporation,  should 
not  be  allowed  to  prevail  where  it  would  defeat  the  ends  of 
justice  or  work  a  legal  wrong.  When,  therefore,  a  contract 
is  not  on  its  face  necessarily  beyond  the  scope  of  the  powers 
of  the  corporation  by  which  it  was  made,  it  will  be  presumed 
valid  until  the  contrary  be  proved.* 

1  §  593;  8  M.  &  W.  421;  Bristol  R.  v.  Collins,  7  H.  L.  194;  Gill  v. 
Manchester  R.,  L.  R.  8  Q.  B.  186;  7  II.  &  N.  986;  Railroad  Co.  v.  Pratt, 
22  Wall.  (U.  S.)  123,  and  cases  cited;  Knight  v.  Portland  R.,  5G  Me. 
234;  Buffett  v.  Troy  R.,  40  N.  Y.  168;  Southwestern  R.  v.  Thornton,  71 
Ga.  01. 

2  Railway  Co.  v.  McCarthy,  6  Otto  (U.  S.),  258. 

3  22  Wall.  (U.  S.)  594;  48  N.  H.  339;  Hill  Manuf.  Co.  v.  Boston  & 
Lowell  R.,  104  Mass.  122  ;  Noyes  v.  Rutland  R.,  27  Vt.  110  ;  Baltimore 
Steamboat  Co.  i'.  Brown,  54  Penn.  St.  77. 

4  §  594;  Railway  Co.  v.  McCarthy,  6  Otto  (U.  S.)  258;  Union  Water 
Co.  V.  Fluming  Co.,  22  Cal.  620;  Morris  R.  v.  Railroad  Co.,  29  N.  J. 
Eq.  542;  Whitney  Arms  Co.  v.  Barlow,  63  N.  Y.  62;  2  H.  &N.  703;  54 
Penn.  St.  77;  Perkins  v.  Portland  R.,  47  Me.  573;  Clyde  v.  Hubbard,  88 
Penn.  St.  358 ;  13  Gray  (Mass.),  124.  An  enaWing  statute  may  be  found 
in  some  States  in  aid  of  this  right.  24  N.  Y.  269  ;  45  :N.  Y.  524  ;  13  Gray 
(Mass.),  124.  As  to  change  in  the  Connecticut  rule,  see  33  Conn.  166, 
commenting  npon  22  Conn.  1. 

In  24  N.  Y.  269,  the  principle  of  the  text  is  admitted  to  apply  to  con- 
necting roads  extending  beyond  the  limits  of  the  State.  And  such, 
agreeably  to  the  necessities  of  traffic,  is  the  general  rule  of  our  States. 
88  N.  C.  547  ;  22  Wall.  (U.  S.)  123;  13  Gray  (Mass.),  124. 


CONNECTING  CARRItKS  317 

490.  Concerning  the  principles  of  liability  to  be  applied  ill  a 
loss,  where  connecting  carriers  transport,  the  cases,  English 
and  American,  appear  fairly  in  accord :  (1)  If  the  connecting 
carriers  undertake  the  transportation  of  goods  for  a  customer 
in  the  close  relation  of  a  mutual  agency  with  joint  principals 
or  a  partnership,  the  receiving  company  or  general  agent 
makes  a  contract  which  hinds  all,  jointly  and  severally,  for 
any  loss  or  injury  which  may  occur  on  the  route ;  and  in 
case  of  loss  or  injury,  the  customer  may  sue  accordingly.^ 
(2)  If  the  receiving  carrier  agrees  to  carry  the  goods  through 
to  their  destination,  and  beyond  his  own  route,  this  carrier 
is  to  be  treated  by  the  customer  like  a  principal  who  employs 
his  own  agents  ;  hence,  for  a  loss  or  injury  thus  occurring  the 
customer  should  sue  him ;  such  carrier  being  assumed  to  have 
his  own  remedy  over  against  the  delinquent  carrier,  and  to 
undertake  towards  the  public  to  transport  in  the  capacity  of 
common  carrier  for  the  entire  distance.^  (3)  But  where  the 
receiving  carrier,  eitiier  for  himself  alone,  or  as  tlie  mere 
agent  of  other  principals  connected  with  him  in  the  carriage, 
undertakes  the  transportation,  he  is  liable  only  for  his  own 
route  as  common  carrier,  and  for  safe  storage  and  due  deliv- 
ery to  the  next  carrier  in  turn ;  in  other  words,  he  is  a  mere 
forwarder,  except  for  his  own  portion  of  tlie  journey.^ 

491.  There  is,  ho-wever,  much  confusion  and  variance  to  be 
found  in  the  decisions  under  connecting  carriers,  for  the  rea- 
son that  proof  and  presumptions  are  applied  differently  to 
determine  what,  in  a  given  case,  was  the  carrier's  actual  en- 
gagement to  his  customer ;  whether,  in  point  of  fact,  there 
was  a  partnership  or  mutual  agency,  or  an  undertaking  to  be 
a  through  carrier,  or  simply  an  undertaking  to  be  a  forwarder 
be3^ond  one's  own  route.  For,  plainly  enough,  a  carrier  may 
by  special  contract  with  his  customer  overcome  the  presump- 
tion that  his  undertaking  was  upon  one  footing  rather  than 
another,  and  may  modify  considerably  the  usual  liabilities  of 

1  §  594;  ante,  488. 

2  Southwestern  11.  v.  Thornton,  71  Ga.  61;  §594. 
8  §  594,  and  see  post,  492,  493. 


318  THE   LAW   OF   BAILMENTS 

any  such  capacity.  The  proof  which  overcomes  the  usual 
presumption,  and  establishes  a  special  contract  relation,  may 
be  oral  or  written,  direct  or  circumstantial.  But  what  proof 
shall  suffice,  and  what  shall  be  the  usual  presumption  in  the 
absence  of  countervailing  proof,  we  must  now  inquire ;  ^  and 
here  we  find  tiiat  English  and  American  rules  are  discordant. 
492.  The  English  presumption  favors  the  idea  of  a  through 
transportation  ;  for  in  Great  Britain,  whose  railroad  system  is 
snug  and  compact,  inheriting  to  a  remarkable  degree  the  tra- 
ditions of  stage-coach  conveyance,  the  disposition  has  been, 
from  the  first,  to  regard  the  company  which  receives  a  parcel 
and  books  it  for  a  certain  destination,  as  intending  to  be  a 
carrier,  by  implication,  for  the  whole  distance.-  This,  in  a 
leading  case,  decided  not  long  after  the  introduction  of  steam 
inland  locomotion,  was  pronounced  the  rule,  notwithstanding 
payment  in  advance  for  the  carriage  had  been  declined  by  the 
booking  company,  whose  route  was  well  known  to  extend 
only  part  way  to  the  final  destination,  and  the  loss  of  the 
goods  occurred  at  a  point  beyond,  which  was  traversed  by  a 
connecting  railway.^  And  the  House  of  Lords  has  gone  so 
far  in  this  direction  as  to  insist,  in  a  stubbornly  contested  case 
carried  up  on  final  appeal,  that  wdiere  the  contract  for  carriage 
is  made  thus  exclusively  with  the  first  company,  the  owner 
cannot  sue  any  of  the  subsequent  companies  on  the  route  for 
their  miscarriage.^  Here  we  discover,  then,  a  strong  disposi- 
tion to  favor  our  second  principle  of  liability  where  the  car- 
riage of  goods  is  undertaken  over  connecting  routes  ;  so  that  a 
railway  or  other  receiving  carrier  appears  in  England  presuma- 
bly the  party  actually  bound  to  see  that  freight  accepted  for  a 
certain  point  is  duly  delivered  at  the  place  of  destination. 

1  §  595. 

2  §  596;    IMuscharap  v.  Lancaster  R.,  8  M.  &  W.  421;  5  H.  &  N.  274; 
Bristol  &  Exeter  R.  v.  Collins,  7  H.  L.  194. 

3  §  596;  8  M.&  W.  421  {&prbiia  facie  undertaking  to  carry  to  destination). 
*  Bristol  &  Exeter  R.  v.  Collins,  7  11.  T>.  194,  on  appeal,  reversing  1 

H.  &  N.  517;  which  reversed  s.  c.  11  Ex.  790;  4  II.  &  N.  615;  5  H.  &  N. 
274.     Cf.  Gill  V.  Manchester  R.,  L.  R.  8  Q.  B.  15G. 

The  English  rule  favors,  therefore,  rule  (2),  in  ante,  490. 


CONNECTING  CARRIERS  319 

493.  In  America,  on  the  other  hand,  -where  rail-ways  tran- 
scend State  limits,  and  bring  distant  cities  into  closer  com- 
munion by  cutting  paths  through  intermediate  forests  and 
over  prairies,  -where  it  must  often  be  an  inconvenience  to  sue 
the  first  carrier  alone,  and  where,  in  fact,  this  sort  of  extended 
transportation  is  novel  and  sui  generis,  tlie  more  obvious  dis- 
position has  been  to  regard  each  of  several  successive  com- 
panies, where  no  special  undertaking  appears  to  the  contrary, 
as  liable  in  the  common-carrier  capacity  only  for  the  space  of 
its  own  route,  and  intending  beyond  this  no  more  than  safe 
storage,  and  due  delivery  to  the  next  carrier  in  succession.^ 
More  particularly  does  the  railway  which  receives  the  goods 
marked  to  some  point  beyond  its  own  line  find  immunity 
against  the  subsequent  miscarriage  of  a  connecting  company 
where  nothing  like  a  partnership  or  agency  relation  is  shown 
to  exist  between  the  two,  and  the  first  railway  neither  took 
pay  for  carriage  of  the  goods  beyond  its  own  terminus,  nor 
agreed  to  send  them  through  on  its  own  responsibility.  The 
simple  receipt  of  goods  so  marked  will  not,  then,  ])7-ima  facie 
import  a  promise  to  carry  them  to  their  final  destination^ 
according  to  our  leading  authorities.^  The  preponderance  of 
authority  in  this  country  favors,  therefore,  the  presumption 
that  each  carrier  in  a  continuous  transportation  is  only  a  for- 
warder beyond  his  ow^i  line  ;  so  that  the  receiving  carrier  is  no 
more  than  the  agent  of  others  succeeding  him  in  the  carriage.^ 

^  §  597;  Converse  v.  Norwich  Trans.  Co.,  33  Conn.  106;  Nutting  v. 
Conn.  River  R.,  1  Gray  (Mass.),  502  ;  23  Vt.  186  ;  Railroad  Co.  v.  Berry,  68 
Penn.  St.  272;  88  N.  C.  547;  19  S.  C.  353;  43  Mich.  609;  Knight  v. 
Providence  R.,  13  R.  I.  572;  19  Ohio  St.  221;  59  N.  Y.  611;  16  Mich. 
80 ;  Schneider  r.  Evans,  25  Wis.  241 ;  Montgomery,  &c.  R.  v.  Moore,  51 
Ala.  394;  Sherman  v.  Hudson  River  R.,  64  N.  Y.  254;  Perkins  v.  Port- 
land R.,  47  Me.  573;  Brintnall  v.  Saratoga,  &c.  R.,  32  Vt.  665;  Craw- 
ford V.  Southern  R.,  51  Miss.  222  ;  Lawrence  v.  Winona  R.,  15  Minn.  390 ; 
53  Kan.  157;  86  Va.  248. 

2  Burroughs  v.  Norwich  &  Worcester  R,  100  Mass.  26;  Lock  Co.  v. 
Railroad,  48  N.  H.  339,  and  authorities  cited;  51  N.  H.  9;  76  Tex.  195. 
And  see  14  Otto  (U.  S.),  146;  16  AVall.  318;  Railroad  Co.  ».  Pratt, 
22  Wall.  123. 

3  The  American  rule  favors,  therefore,  rule  (3)  in  ante,  490. 


320  THE  LAW  OF  BAILMENTS 

494.  There  are,  however,  American  decisions  in  the  highest 
courts  of  some  States,  which  hamiouize  more  closely  with  the 
English  doctrine  in  this  respect,^  and  regard  the  mere  receipt 
of  goods  destined  beyond  one's  own  route  as  tantamount  to  a 
through  undertaking  for  common  carriage  in  the  absence  of 
an  express  disclaimer  by  the  receiving  carrier.  And,  it  should 
be  observed,  our  present  contention  is  for  a  prima  facie  case 
only;  which,  by  the  showing  of  attendant  circumstances,  or 
usage,  might  be  so  readily  overcome,  in  a  particular  case,  that 
doubtless  some  explicit  disavowal  of  responsibility  beyond 
one's  own  route,  in  the  contract  of  transportation,  is  always 
prudent  wherever  one  carrier  receives  goods,  to  be  sent  b}^ 
connecting  lines  beyond  his  own  terminus,  each  carrier  of 
whom  is  to  transport  on  his  separate  risk.^  Under  English 
or  American  presumptions,  that  most  onerous  principle  of 
partnership,  or  joint  and  several  liability  in  a  connecting 
carriage,  the  first  above  stated,  finds  the  most  disfavor,  and 
requires  the  strictest  proof. 

495.  The  carrier  who  actually  occasioned  the  loss  may  at  all 
events  be  sued,  according  to  the  usual  American  rule.  For 
while  English  courts  have  pronounced  the  receiving  carrier  ex- 
clusively liable  for  a  loss  over  the  whole  route,^  no  such  rigid 
adherence  to  legal  consistency  is  favored  in  this  country.  On 
the  contrar}^,  the  carrier  company  which  in  point  of  fact  can  be 
shown  to  have  occasioned  the  loss  or  injury  is  suable  by  the 
customer,  as  American  courts  have  ruled,  even  though  the 
first  carrier  may  by  his  sufficient  and  express  contract  have 
assumed  the  transportation  risks  for  the  entire  distance.  And 
just  as  an  innocent  and  non-contracting  carrier  is,  on  the  one 

1  Kyle  V.  Laurens  R.,  10  Rich.  (S.  C.)  382;  24  111.  332;  Rome  R.  v. 
Sullivan,  25  Ga.  228;  74  111.  197;  Mulligan  r.  Illinois  Central  R.,  36 
Iowa,  181;  East  Tennessee  R.  v.  Rogers,  0  Heisk.  (Tenn.)  143;  Mobile 
R.  V.  Copeland,  63  Ala.  219;  38  Ga.  37;  Ilalliday  v.  St.  Louis  R.,  74 
Mo.  159;  79  Iowa,  527 ;  160  111.  648. 

^  §  598.  "  It  is  unfortunate  for  the  interests  of  commerce  that  there 
is  any  diversity  of  opinion  on  such  a  subject,  especially  in  this  country." 
Mr.  Justice  Davis,  in  Railroad  Co.  v.  Man.  Co.,  16  Wall.  (U.  S.)  318, 
approving  the  other  rule. 

3  Ante,  492. 


CONNECTING  CARRIERS  321 

hand,  shielded  if  possible,  so,  on  the  other,  is  the  disposition 
strong  to  hold  a  connecting  carrier  answerable  for  his  own 
negligence,^ 

496.  By  special  contract,  unquestionably,  whatever  the  pre- 
sumption, a  carrier  may,  in  America,  as  well  as  in  England, 
assume  to  transport  beyond  his  own  limits  ;^  and  such  a  con- 
tract, it  is  generally  admitted,  is  inferable  from  circumstances 
independently  of  an  express  stipulation.^  ^iiy  written  docu- 
ment given  duly  to  the  consignor  by  way  of  receipt,  and  as  an 
expression  of  the  carriage  terms,  bears  upon  this  question ;  the 
force  and  meaning  of  such  documents  come  frequently  before 
the  court  for  construction;  and  writings  furnish  not  only  evi- 
dence, but  the  best  evidence,  of  what  the  contract  really  was. 
But  material  surrounding  circumstances  should  be  submitted 
as  part  of  the  case  to  a  jury ;  and  where  there  is  competent 
evidence  on  which  such  jury  may  lawfully  find  the  existence 
of  the  through  contract  alleged,  the  court  ought  not  to  deter- 
mine the  issue  by  its  own  arbitrary  construction  of  particular 
writings.*     Usage,  too,  and  the  general  business  course  of  the 


1  §  599;  Aigen  v.  Boston  &  Maine  R.,  132  Mass.  423,  per  curiam; 
Packard  v.  Taylor,  35  Ark.  402.  "  I  have  not  met  with  an  American 
case  in  which  the  rule  has  been  pressed  to  the  extent  of  holding  that  the 
owner  cannot  come  on  any  carrier  by  whose  default  the  loss  or  damage 
actually  happened."  Perley,  C.  J.,  in  Lock  Co.  v.  Railroad,  48  X.  H. 
339.  And  see  110  Cal.  348.  Even  under  the  English  rule,  exception  may 
be  shown  in  this  respect,  as  where  a  railway  partnership  relation  existed. 
Gill  V.  Manchester  R.,  L.  R.  8  Q.  B.  156. 

2  §  600;  a7Ue,  489. 

3  See  Crawford  i'.  Southern  R.,  51  Miss.  222;  Cutts  v.  Brainerd,  42 
Yt.  466 ;  Najac  v.  Boston  &  Lowell  R.,  7  Allen,  329  ;  Locke  Co.  v.  Rail- 
road, 48  N.  H.  339;  51  N.  H.  9,  24;  22  Wall.  (U.  S.)  23. 

*  Myrick  v.  Michigan  Central  R.,  107  U.  8.  102;  14  Wall.  (U.  S.) 
484;  22  Wall.  (U.  S.)  123.  Receipt  of  the  entire  pay,  by  the  receiving 
carrier,  affords  a  fair  presumption  of  an  entire  contract.  Railroad  Co.  v. 
Pratt,  22  Wall.  (U.  S.)  123  ;  Evansville  R.  v.  ISIarsh,  57  Ind.  505. 

In  construing  documents  of  carriage,  the  whole  language  and  tenor  of 
the  instrument  should  be  fairly  considered.  Such  words  as  "transport  " 
or  "carry"  (which  are  equivalent)  are  distinct  from  the  idea  of  "for- 
warding." 22  Wall.  123.  Cf.  6  Heisk.  (Tenn.)  143  (an  extreme  case)  ; 
42  Vt.  466.     And  see  Myrick  v.  Michigan  Central  R.,  107  U.  S.  102; 

21 


322  THE   LAW   OF   BAILMENTS 

receiving  carrier  may  be  shown  as  tending  to  establish  on  his 
part  the  assumption  of  a  through  liability.^ 

497.  The  acts  and  admissions  of  such  corporate  agents  and 
ofiBcers  as  usually  attend  to  freight  may  fairly  bind  the  company 
in  all  undertakings  of  this  character.^  And  it  is  adjudged 
that  a  company  which  has  held  itself  out  in  such  a  manner, 
and  for  so  long  a  time,  as  a  common  carrier  to  a  place  beyond 
its  own  terminus,  that  the  corporators  may  be  presumed  to 
have  knowingly  assented  thereto,  is  estopped  to  deny  the 
validity  of  a  through  contract  for  carriage  entered  into  by  its 
usual  agent.^  So  a  depot  agent  who  receives  and  forwards 
freight  can,  in  the  absence  of  special  instructions  made  known 
to  the  public,  bind  his  company  to  send  through  merchandise  ;  * 
yet  a  cautious  shipper  will  scrutinize  such  agent's  authority, 
unless  it  can  be  reasonably  inferred  from  previous  dealings,  or 
the  company  has  held  itself  out  for  business  to  such  points.^ 
While  a  company  may  thus  render  itself  responsiljle  to  the 
customer  beyond  its  limits,  it  cannot,  of  course,  bind  com- 
panies owning  the  connecting  roads,  without  in  some  manner 
procuring  their  consent  or  acquiescence  thereto.^ 

498.  A  through  receipt  of  the  goods,  according  to  some  Ameri- 
can decisions,  while  importing  by  itself  no  absolute  undertak- 
ing to  be  responsible  for  the  whole  journey,  is  a  circumstance 
which,  with  the  other  facts  in  a  given  case,  may  be  weighed 
by  the  jury.  This  should  perhaps  be  pronounced  the  most 
rational  doctrine  of  the  three  we  have  stated,  as  to  presump- 

Ortt  V.  Minneapolis  R.,  36  Minn.  396;  Harris  v.  Grand  Trunk  R.,  15 
R.  I.  371 ;  East  Tennessee  R.  i'.  Rogers,  6  Ileisk.  (Tenn.)  143  (an  extreme 
case).  That  a  carrier  who  stipulates  for  through  liability  becomes  liable 
for  misdelivery  by  the  connecting  carrier  to  whom  he  has  delivered  tlie 
goods,  see  Clyde  v.  Hubbard,  88  Penn.  St.  358.     See  24  Fed.  (U.  S.)  509. 

1  Lowenburg  v.  Jones,  o6  Miss.  688;  §  600. 

2  See  27  Vt.  110;  §  601. 

8  Perkins  v.  Portland,  &c.  R.,  47  Me.  573;  ante,  489. 

*  Watson  V.  Memphis  R.,  9  Heisk.  (Tenn.)  255. 

*  Grover  Sewing  Machine  Co.  v.  Missouri  Pacific  R.,  70  Mo.  672. 

^  See  Bank  of  Kentucky  v.  Adams  Express  Co.,  93  U.  S.  174  ;  Chicago, 
etc.  R.  V.  Northern  Line  Packet  Co.,  70  111.  217;  Newell  v.  Smith,  49  Vt. 
255;  34  Hun  (N.  Y.),  97  (verbal  agreement). 


CONNECTING   CARRIERS  323 

tions,  though  not  the  most  exact  of  application.^  The  carrier's 
receipt  of  goods  directed  beyond  liis  own  route  may  charge 
him  accordingly  (even  in  some  American  States  which  deny 
the  presumption  favored  by  the  English  courts),  when  other 
circumstances  concur  to  fasten  upon  him  the  intent  of  send- 
ing the  goods  through  on  his  sole  undertaking  with  tlie 
owner.  Receiving  with  the  goods  thus  directed  freight- 
money  in  advance  for  the  whole  distance  should  strongly 
manifest  such  an  intent;^  and  tlie  transportation  methods  of 
the  connecting  roads,  the  manner  in  which  their  througli 
business  is  held  out  to  the  public,  to  one  another,  and  to  the 
particular  customer,  bear  forcibly  upon  the  issue  thus  pre- 
sented, of  the  receiving  carrier's  liability  for  goods  beyond 
his  own  line,  according  as  the  bailment  must  justly  have  con- 
templated; which  issue  circumstances,  as  well  as  positive 
stipulation,  may  in  good  reason  resolve.^ 

499.  But,  on  the  other  hand,  special  contract  may  exclude  a 
through  liability,  since  it  is  no  part  of  a  common  carrier's  obli- 
gation to  carry  goods  on  his  own  risk  beyond  his  terminus. 
Hence  he  may  lawfully  stipulate,  on  receiving  property  for  a 
distant  destination,  that  he  shall  not  be  liable  as  common  car- 
rier beyond  his  own  route,  —  a  most  convenient  means,  doubt- 
less, of  countervailing  these  troublesome  presumptions,  and 

1  See  the  learned  opinion  of  Perley,  C.  J.,  in  Lock  Co.  v.  Raih'oad,  48 
N.  IT.  339 ;  51  N.  H.  9,  24  ;  §  602. 

^  §602;  24111.232;  19  Wend.  (N.  Y.)  534  ;  Adams  ExpressCo.  r.  Wilson, 
81  111.  143  ;  Baltimore  Steamboat  Co.  v.  Brow  n,  51  Penn.  St.  77.  Even  in 
the  leading  case  of  Muschamp  v.  Lancaster  R.,  8  M.  &  W.  421,  the  con- 
signee's offer  in  advance  of  freight-money  to  the  terminus  was  not  declined 
by  the  carrier  in  any  such  manner  as  denied  his  right  to  be  paid  for  the 
continuous  transportation.  Such  evidence  is  not  conclusive.  68  Miss. 
14.  The  methods  of  receiving  payment  or  of  entering  charges  should  be 
scrutinized  as  to  meaning.     87  Me.  299. 

3  Hill  Manuf.  Co.  v.  Boston  &  Lowell  R.,  104  Mass.  122  ;  18  Wend. 
(X.  Y.)  176;  Morse  v.  Brainerd,  41  Vt.  550;  68  Iowa,  363.  But  cf.  33 
Conn.  166;  100  Mass.  26,  and  cases  cited;  91  Ga.  389. 

Allowing,  therefore,  for  the  differences  of  presumption  and  circum- 
stantial proof,  the  rule  of  a  connecting  carrier's  liability  appears  to  be 
according  to  the  fundamental  rules  already  stated,  ante,  490. 


324  THE   LAW   OF  BAILMENTS 

making  the  limits  of  one's  own  undertaking  specific.^  And 
railways  and  steamships  not  uncommonly,  in  these  days,  issue 
their  tickets,  way-bills,  receipts,  or  other  documents  for  trans- 
portation over  continuous  lines,  so  expressed  as  clearly  to 
indicate  whether  the  receiving  carrier  engages  to  send  the 
goods  through,  and  thus  hold  himself  responsible  as  carrier 
for  the  entire  distance,  with  a  duty  of  final  delivery  at  the 
point  of  destination,  or  so  that  each  successive  carrier  shall  be 
responsible  only  for  losses  occurring  on  his  own  route,  and 
before  compliance  with  the  duty  of  delivering  to  the  next  car- 
rier in  order.  For  independent  connecting  carriers  may  pro- 
vide for  a  distinct  and  independent  responsibility,  each  for  his 
own  line .2 

500.  To  speak  generally  of  the  stipulations  of  connecting  car- 
riers, by  way  of  specially  modifying  the  usual  lisks  or  bail- 
ment performance,  these  take  effect  upon  the  usual  conditions 
ap})licable  to  common  carriers  who  seek  to  modify  their  legal 
duties  in  corresponding  respects.  Thus,  the  stipulation  itself 
must  conform  to  public  policy ;  ^  and  it  must  be  suitably  and 

1  §  603  ;  Fowles  v.  Great  Western  R.,  7  Ex.  699;  23  N.  Y.  Supr.  278; 
36  111.  181  ;  United  States  Express  Co.  v.  Haines,  07  111.  127;  20  Wis. 
122;  Berg  v.  Atchison  R.,  30  Kan.  561;  89  N.  C.  311.  Even  though  a 
through  rate  of  freight  be  given,  the  express  disclaimer  of  through  liability 
ill  the  bill  of  lading  is  not  negatived  thereby.  McEacheran  v.  Michigan 
R.,  101  Mich.  264. 

2  lb.  See  28  Ohio  St.  358.  No  carrier  can  be  compelled  to  give  a 
bill  of  lading  making  him  responsible  for  goods  beyond  his  own  route- 
73  Ala.  306. 

8    §  604;  0.  5. 

The  special  stipulation  for  a  continuous  carriage  that  the  company  in 
whose  possession  the  goods  are  at  the  time  of  loss  or  damage  shall  alone 
be  liable,  is  reasonable  and  valid.  89  N.  C.311.  But  the  carrier  cannot 
stipulate  with  another  not  to  receive  goods  destined  to  a  point  beyond 
his  own  line.     (Ky.  1889),  5*  S.  W.  193. 

Though  a  carrier  should  stipulate  against  responsibility  for  damage 
beyond  his  own  line,  his  failure,  without  sufficient  excuse,  to  send  by  the 
line  or  route  or  in  the  cars  promised,  renders  him  still  liable  for  damage 
or  delay  ;  for  this  is  a  deviation  from  the  terms  of  the  bailment.  Galves^ 
toi;i  ^l.  V.  Allison,  59  Tex.  193 ;  Levy  v.  Louisville  R.,  35  La.  An.  615; 
Georgia  R.  v.  Cole,  68  (!ia.  62^5.     If  a  carrier  contracts  to  send  through  by 


CONNECTING   CARRIERS  325 

seasonably  brought  to  the  customer's  knowledge  and  must 
directly  or  indirectly  gain  his  assent.^  Where  the  freight 
contract  is  for  through  transportation,  though  not  otherwise, 
each  connecting  carrier,  as  a  rule,  will  be  entitled  to  the  bene- 
fits and  exemptions  of  the  contract  made  by  the  shipper  and 
the  first  carrier.^  But  one  receiving  goods  as  a  connecting 
carrier  cannot,  as  such,  claim  the  benefit  of  an  express  limita- 
tion of  risks  for  which  the  first  carrier  stipulated  with  the 
consignor  on  his  own  behalf  and  for  his  own  advantage  and 
protection  only.^  For  one  of  several  connecting  carriers  may 
limit  the  risks  of  transportation  while  the  goods  are  in  his  own 
custody  alone.*  And  where  the  connecting  carrier  makes  a 
new  and  different  contract  on  his  own  behalf,  the  former  con- 
tract is  not  presumed  to  inure  to  his  benefit.^ 

501.  An  intermediate  carrier  in  a  continuous  line,  •who  has 
made  no  contract  with  the  customer  and  is  not  in  actual  de- 
fault, cannot  be  held  liable  to  consignor  or  consignee,  for  the 
negligence,  extortion,  or  misconduct  of  other  carriers,  whatever 
ma}!'  be  his  own  liability  to  the  contracting  carrier.^ 

502.  The  fair  presumption,  in  case  of  a  loss  or  injury  discov- 
ered when  arrival  was  due  over  connecting  roads,  is  that  the 
loss  occurred  through  the  fault  of  the  last  carrier.  Were  this 
otherwise,  the  owner  of  property  who  is  compelled  to  sue  the 
company  occasioning  the  loss  could  seldom  establish  his  case 

a  certain  line  by  a  given  time,  he  is  liable  for  losses  caused  by  delays  over 
a  connecting  road.  66  Cal.  92.  And  see  191  III.  57  (negligent  mis- 
direction). 

1  See  c.  5.  Insufficient  special  notice  printed  on  back  of  receipt.  16 
Wall.  (U.  S.)  318.  Bill  of  lading  binds  by  inference  where  no  objection 
is  made.     89  N.  C.  311 ;  89  Ala.  376. 

2  Merchants'  Despatch  Co.  i'.  Bolles,  80  111.  473;  50  Ark.  397;  Whit- 
worth  V.  Erie  R  ,  87  N.  Y.  413  (exemption  for  loss  by  "accidental  fire  "); 
Conn.  (1902);  Railroad  Co.  v.  Androscoggin  Mills,  22  Wall.  (U.  S.)  594. 

3  47  Iowa,  262  ;  Taylor  v.  Little  Rock  R.,  39  Ark.  168;  120  lud.  73. 

4  55  Mich.  218.     See  91  Ala.  340 ;  94  Ga.  471. 

5  Browning  v.  Goodrich  Co.,  78  Wis.  391. 

«  Hill  V.  Burlington  R.,  60  Iowa,  196.  Unless,  perhaps,  some  partner- 
ship^or  mutual  agency  relation  can  be  shown  to  charge  him  more  closely. 
See  §  605.  * 


826  THE  LAW   OF   BAILMENTS 

ill  proof.i  This  presumption,  however,  best  avails  under  tliat 
American  rule,  elsewhere  stated,^  which  protects  the  receiving 
carrier;  thereby  compelling  the  customer,  under  any  other 
theory,  to  search  far  and  wide  through  different  States,  it  may 
be,  for  the  company  through  whose  delinquency  the  mischief 
was  in  fact  occasioned,  tinder  the  English  presumption  so 
onerous  a  necessity  is  avoided  by  the  rule  which  places  the 
responsibility  once  and  for  all  upon  the  receiving  carrier;^ 
and  there  are  States  which,  pursuing  that  same  rule  (or  pos- 
sibly without  doing  so),  deny  to  the  customer  any  right  to 
hold  the  last  carrier  liable,  or  any  carrier  later  than  the  first 
and  contracting  one ;  unless,  at  all  events,  he  can  allege  and 
prove  that  such  carrier  was  actually  the  delinquent  one,  or 
else  can  establish  such  community  of  interest  in  the  trans- 
portation as  to  constitute  a  partnership  or  mutual  agenc}^  of 
these  companies  towards  the  public* 

503.  The  liability  of  connecting  carriers  toward  one  another 
deserves  notice.  Where  the  receiving  carrier,  or  any  other 
carrier  who  did  not  in  fact  cause  the  loss,  is  made  responsible 
to  the  customer  for  the  loss  or  injury  suffered,  his  remedy 
over  against  the  connecting  carrier  or  carriers  depends  mainly 
upon  the  private  arrangement  which  exists  between  them. 
Usually  some  full  and  explicit  contract  will  be  found  to  de- 

1  §  606;  Laughlin  v.  Chicago  R.,  28  Wis.  2C4  ;  Memphis  R.  v.  Hollo- 
way,  9  Baxt.  (Tenn.)  188;  Leo  v.  St.  Paul  R.,  30  Minn.  438  ;  32  Vt.  665 ; 
Smith  V.  New  York  Central  R.,  43  Barb.  225;  affirmed  on  appeal,  41 
N.  Y.  620;  53  Ala.  19;  78  Tex.  372. 

2  Ante,  493.  * 
8  Ante,  492. 

4  21  S.  C.  35 ;  Atchison  R.  v.  Roach,  35  Kan.  740 ;  Chicago  R.  v. 
Fahey,  52  111.  81.     And  see  Marquette  R.  v.  Kirkwood,  45  Mich.  51. 

Some  local  statutes  undertake  to  define  which  company  in  a  connecting 
line  of  railways  shall  be  held  liable  for  a  loss  occurring  on  the  transit. 
56  Ga.  498;  81  Ga.  522. 

The  company  which  is  sued  for  loss  may  by  the  agent  of  a  connecting 
road,  with  the  aid  of  entries  in  the  books  of  such  road,  prove  delivery 
thereto  in  good  order.  66  Ga.  39.  Usually  each  carrier  receipts  for  the 
goods  in  succession  ;  and  such  receipt  as  "  in  good  order  and  condition  " 
should,  if  given  by  the  final  carrier,  raise  a  strong  presumption  that  he  was 
liable  for  loss  or  injury.     See  67  Miss.  35. 


CONNECTING  CARRIERS  327 

termine  this  liability  of  carriers  inter  sese^  whether  by  way  of 
partnership  or  mutual  agency  or  on  the  basis  of  a  less  inti- 
mate arrangement.  On  general  principle,  however,  the  first 
carrier  or  principal  transporter  who  is  held  answerable  to  the 
public  may  in  such  a  case  sue,  on  his  own  behalf,  the  connect- 
ing carrier  through  whose  delinquency  or  default  a  loss  oc- 
curred, just  as  otlier  principals  may  their  own  subordinates ; 
but  he  cannot  hold  connecting  carriers  who  are  blameless 
answerable  thus  merely  because  of  the  connection. ^ 

504.  When  the  risk  of  a  connecting  carrier  commences  is  our 
next  point  of  inquiry.  Tlie  fundamental  doctrine  of  bailment 
delivery  here  applies :  and  we  may  state  generally  that  this 
carrier's  liability  as  such  commences  when  the  goods  are 
delivered  to  him  or  his  authorized  agent  for  immediate  trans- 
portation and  accepted  accordingly ;  or,  to  come  closer  to  the 
point,  that  the  succeeding  carrier's  risk  attaches  upon  his 
receipt  and  acceptance  of  goods  from  his  predecessor  to 
transport  tlie  same  without  awaiting  further  orders.  What 
favors  the  idea  of  an  acceptance  as  for  immediate  transporta- 
tion more  especially  in  this  instance  is,  that  the  consignor  or 
owner,  unless  notified,  is  necessarily  debarred  from  handling 
the  goods  for  himself,  but  must  leave  the  connecting  carriers 
to  arrange  the  transfer  of  delivery  with  one  another,  trusting 
that  some  carrier's  risk  is  attached  throughout  the  journey 
without  intermission.  Any  mode  of  acceptance,  even  though 
it  were  a  deposit  without  notice,  to  which  the  carrier  who 
receives  has  agreed  or  bound  hi^niaelf,  fixes  his  liability.  And 
it  would  appear,  that  the  receiving  carrier's  lesser  risk  as 
warehouseman  goes  rather  to  the  disadvantage  of  his  prede- 
cessor than  the  sliipper  of  the  goods ;  since  it  would  be  unfair 
to  permit  the  customer  to  be  sacrificed  between  the  continuous 
parties  who  are  performing  their  public  vocation  together 
without  his  interv^ention.^     Custom  at  different  times  and  in 

1  §  607;  70  111.  217;  Smith  v.  Foran,  43  Conn.  244;  24  How.  (U.  S.) 
247. 

2  §  608;  24  Conn.  3o4 ;  33  ib.  166  ;  Pratt  i:  Railway  Co.,  90  U.  S.  43; 
Alabama  R.  v.  Mount  Vernon  Co.,  84  Ala.  173. 

But  what  shall  constitute  for  fixing  liability  as  between  these  carriers 


328  THE  LAW  OF  BAILMENTS 

different  sections  of  the  country  may  of  course  vary.  De- 
livery by  one  of  the  connecting  carriers,  not  for  storage, 
however,  but  solely  for  transportation  onward,  there  being 
nothing  to  wait  for,  will  render  the  new  carrier,  whenever  he 
accepts  the  goods,  instantly  liable  to  the  full  extent  of  his 
public  capacity ;  ^  and  if  the  liability  of  the  succeeding  carrier 
attaches,  the  liability  of  his  predecessor  is  discharged,^  subject 
to  the  presumptions  and  special  undertakings  already  set 
forth. 

505.  As  to  termination  of  connecting  carrier's  risk,  if  the  later 
receiving  carrier  in  a  continuous  transportation  be  not  liable, 
then  his  predecessor  should  be.  For  delivering  sufficiently 
and  discharging  one's  own  carriage  risk  in  such  cases,  the 
general  rule  adopted  by  the  courts  of  this  country  makes  it 
the  duty  of  such  a  carrier,  in  the  absence  of  any  special  con- 
tract to  the  contrary,  to  carry  to  the  end  of  his  line,  and  then 
deliver  to  the  next  carrier  in  the  route  beyond,^  agreeably  to 
the  presumption  that  he  has  undertaken  as  forwarder,  to  be 
so  far  responsible  but  not  farther.     And  the  opinion  which 

a  deposit  with  the  new  carrier  for  the  purpose  of  transportation  onward, 
without  further  orders,  it  is  sometimes  difficult  upon  the  peculiar  facts 
to  decide.  §  608.  Cf.  Judson  v.  Western  R.,  -4  Allen  (Mass.),  520  ;  contra 
Michaels  v.  New  York  R.,  30  N.  Y.  5(34. 

1  Pratt  V.  Railway  Co.,  90  U.  S.  43  ;  Cincinnati  R.  v.  Spratt,  2  Duv. 
(Ky.)  4;  Converse  v.  Norwich  Trans.  Co.,  33  Conn.  166;  Rogers  o. 
AVheeler,  52  N.  Y.  262  ;  59  N.  Y.  34,  QU. 

2  90  U.  S.  43  ;  O'Neil  v.  N.  Y.  Central  R.,  60  N.  Y.  138. 

"  Boycottinor "  is  not  an  excuse  for  refusing  to  accept  goods  from  a 
boycotted  road.     34  Fed.  244,  481. 

'3  §  609;  Railroad  Co.  v.  Manuf.  Co.,  16  Wall.  (U-.  S.)  318;  Condon 
V.  Marquette  R.,  55  Mich.  218;  34  N.  Y.  497;  Mills  v.  Michigan  Central 
R.,  45  N.  Y.  622;  Conkey  v.  Milwaukee  R.,  31  Wis.  619;  Rawson  v. 
Holland,  59  N.  Y.  611;  Lawrence  v.  Winona  R.,  15  Minn.  390;  Mer- 
chants' Despatch  Co.  v.  Bolles,  80  111.  473.  The  doctrine  of  Massachusetts 
and  other  States  (referred  to  cmte,  411),  which  permits  railways  to  terminate 
the  carriage  liability  by  unloading  and  storing  the  goods,  may  be  thought 
in  conflict  with  the  statement  of  the  text.  But  it  does  not  follow  that 
the  same  doctrine  applies  to  connecting  carriers  and  a  consignee.  See 
Gray,  C.  J.,  in  Rice  v.  Hart,  118  Mass.  201,  208.  Cf.  13  Gray  (Mass.), 
481,  487 ;  4  Allen  (Mass.),  520,  523. 


CONNECTING  CARRIERS  329 

best  supports  the  common-law  policy  pronounces  the  carrier 
in  such  a  case  so  far  bound  to  deliver  or  attempt  delivering 
to  the  connecting  carrier,  that  he  cannot  discharge  himself  of 
his  carriage  responsibiUty  by  merely  storing  the  goods  in  his 
depot  at  the  end  of  his  own  route/  especially  if  negligent  in 
notifying.  But  there  are  circumstances  under  which  the 
intermediate  carrier  should  be  held  liable  as  warehouseman 
only;  as  where  he  has  given  notice,  and  afforded  the  next 
carrier  reasonable  opportunity  to  take  the  goods  away,  and,  on 
the  latter's  failure  to  do  so,  or  refusal  to  accept,  has  stored  and 
plainly  renounced  the  relation  of  carrier  towards  them ;  ^  and, 
perhaps,  too,  in  the  case  of  a  break  in  the  line  of  transit,  re- 
ferable to  act  of  God  or  other  legal  excuse,  which  renders  it 
impossible  for  the  goods  to  be  promptly  forwarded  ;  provided 
the  carrier  clearly  manifests  the  intent  to  absolve  himself  and 
acts  with  becoming  discretion,^ 

1  "  If  there  be  a  necessity  for  storage  it  will  be  considered  a  mere 
accessory  to  the  transportation,  and  not  as  changing  the  nature  of  the 
bailment.  It  is  very  clear  that  the  simple  deposit  of  the  goods  by  the 
carrier  in  his  depot,  unaccompanied  by  any  act  indicating  an  intention 
to  renounce  the  obligation  of  a  carrier,  will  not  change  or  modify  even 
his  liability.  It  may  be,  that  circumstances  may  arise  after  the  goods 
have  reached  the  depot  which  would  justify  the  carrier  in  warehousing 
them,  but  if  he  had  reasonable  grounds  to  anticipate  the  occurrence  of 
these  adverse  circumstances  when  he  received  the  goods,  he  cannot,  by 
storing  them,  cliange  his  relation  towards  them."  16  Wall.  (U.  S.)  318, 
325.  And  see  U  N.  Y.  497  ;  47  Iowa,  262  ;  14  Blatchf.  (U.  S.)  9  (railway 
receipt  held  no  special  contract  modifying  these  terms)  ;  Condon  v.  Mar- 
quette R.,  55  Mich.  218  (confirming  strongly  this  doctrine).  And  see 
56  Conn.  137  ;  67  Ark.  402. 

As  to  what  constitutes  delivery  over  by  a  railroad  carrier  at  a  steam- 
ship's pier  there  are  some  close  cases.  183  U.  S.  621,  632;  180  Mass. 
252. 

2  §  609;  20  N.  Y.  259;  McDonald  v.  Western  R.,  34  N.  Y.  497;  119 
Fed.  (U.  S.)  808. 

8  Conkey  v.  Milwaukee  R.,  31  Wis.  619.  But  cf.  Mills  v.  Michigan 
Central  R.,  45  N.  Y.  622  (opportunity  to  receive  essential) ;  Condon  v. 
Marquette  R.,  55  Mich.  218.  And  see  81  iNIinn.  247  (unreasonable  de- 
lay by  previous  carrier)  ;  Chicago  R.  v.  Bosworth,  179  U.  S.  442  (cul- 
pable loss  of  a  connecting  carrier's  cars) ;  24  How.  (U.  S.)  247,  as  to  the 
remedy  of  one  carrier  against  another  under  such  circumstances  ;  88  A.la. 


330  THE  LAW  OF  BAILMENTS 

506.  His  own  reasonable  or  stipulated  recompense  is  justly 
due  to  each  carrier  in  a  connecting  line ;  besides  which,  a  liberal 
standard  of  reimbursement  avails  as  to  back  freio'ht  or  chargfes 
upon  the  goods.  Were  carriers  to  transport  in  succession 
without  any  through  arrangement,  each  might  demand  his  pay 
in  advance  or  else  hold  the  goods  by  his  lien  at  his  own 
journey's  end ;  and  the  owner,  in  consequence,  would  have  to 
employ  some  one  at  each  terminus  to  settle  charges  and  put 
the  goods  on  their  course.^  Hence  the  present  business  usage, 
founded  on  general  convenience  and  necessity,  for  each  suc- 
ceeding carrier  to  pay  his  predecessor's  charges  in  turn,  as  the 
owner's  agent,  and  perform  his  own  transportation.  In  this 
capacity  of  agent  the  connecting  carrier  ought  not  to  advance 
for  plainly  erroneous  and  extortionate  back  charges,  nor  make 
such  charges  himself.^  Nor  should  he  pay  the  preceding  car- 
rier in  reckless  disregard  of  loss  or  injury  which  is  brought  to 
his  notice.  But  as  to  any  intermediate  damage  done  the 
goods,  it  is  sufficient  that  such  a  party  acts  in  good  faith  and 
with  the  diligence  to  be  expected  of  an  ordinarily  prudent 
man,  were  he  present  and  acting  for  himself ;  and,  receiving 
goods  in  apparent  good  order,  as  described  in  the  previous  bill 
of  lading,  or  else  using  reasonable  exertions  to  ascertain  how 
they  became  damaged,  he  does  not  forfeit  his  lien  and  right  of 
compensation  for  his  charges  and  those  of  his  predecessors 
which  he  has  advanced,  provided  his  own  transportation  were 
performed  with  due  diligence  and  despatch.^  As  he  is  not 
obliged  to  open  a  package  and  test  the  nature,  condition,  or 
quality  of  its  contents,  but  may  trust  to  appearances,  it  hap- 
pens not  unfrequently  that  a  connecting  carrier  is  justified  in 

443.     Neglect  of  duty  to  place  goods  in  fit  condition  for  a  connecting 
carrier  may  sometimes  charge  a  carrier.     IIG  Fed.  (U.  S  )  235. 

1  §  610.  One  of  several  connecting  carriers  need  not  pay  back 
charges  unless  he  chooses,  even  though  it  is  customary  to  do  so. 
22  Fed.  (U.  S.)  32,  404.  Unless  such  refusal  is  based  upon  an  unlaw- 
ful discrimination,  lb.  Pre-payment  under  code  may  be  required. 
104  N.  C.  658. 

2  37  Barb.  236.     Cf.  13  R.  I.  578. 

3  Knight  V.  Providence  R.,  13  R.  T.  572;  Bissel  r.  Price,  16  111.  408, 
414;  3  Blatchf.  (U.  S.)  279;  11  Ohio,  303. 


CONNECTING  CARRIERS  331 

paying  preceding  charges  where  he  could  not  have  recovered 
for  his  own.i 

507.  A  guaranty  of  through  rates  is  sometimes  given  by  the 
receiving  or  contracting  carrier,  for  his  customer's  convenience, 
and  by  way  of  indemnity  against  unusual,  uncertain,  or  extor- 
tionate charges  on  the  route.^  Where  the  first  of  several 
connecting  railway  companies,  while  stipulating  against  re- 
sponsibility beyond  his  own  line,  makes  a  guaranty  that  the 
cost  of  transportation  to  a  distant  point  beyond  his  own  route 
shall  not  exceed  a  certain  sum  less  than  the  usual  aggregate 
of  charges,  and  this  without  any  knowledge  or  notice  of  the 
guaranty  by  any  of  the  connecting  roads,  and  without  their 
authority  to  give  it,  each  succeeding  company  after  the  first 
may  charge  and  pay  preceding  charges  at  the  usual  rates  ;  and 
the  last  carrier  or  the  final  warehouseman  will  have  a  lien  on 
the  goods  for  the  total  amount  accordingly ;  for  the  shipper's 
remedy  in  such  case  must  be  against  the  first  carrier  on  the 
guaranty.^ 

508.  Notice  is  proper  and  often  imperative  for  the  due  pro- 
tection of  others  concerned,  where  a  connecting  carrier  de- 
faults or  refuses  compliance  with  the  contracting  carrier's 
engagement.  Thus,  if  a  connecting  carrier  to  whom  the  goods 
are  consigned  refuses  to  receive  them,  the  preceding  carrier 
should  promptly  notify  his  own  bailor  and  predecessor,  and 

1  Knight  i\  Providence  R.,  supra.  ^Vhere,  through  the  error  of  some 
intermediate  carrier,  the  goods  are  sent  to  a  place  off  the  route,  and  the 
owner  requests  another  carrier  to  bring  them  thence  to  their  destination, 
this  latter  carrier  acquires  a  lien  for  his  own  freight  and  the  back  charges 
which  he  has  to  pay  before  he  can  get  the  goods.  Vaughan  v.  Providence 
R.,  13  R.  I.  578.     And  see  §  610. 

2  §  610;  Vaughan  v.  Providence  R.,  18  R.  I.  578;  Tardos  v.  Chicago 
R.,  35  La.  An.  15. 

3  §  610;  Schneider  v.  Evans,  25  Wis.  241;  106  N.  C.  207;  25  S.  C. 
249.  Whether,  if  the  other  carriers  had  known  of  such  guaranty,  the 
legal  result  would  have  been  different,  qucere.  See  also  Wells  r.  Thomas 
27  Mo.  17. 

The  value  of  an  article  lost  by  a  prior  carrier  cannot  be  recouped  in 
a  suit  by  the  last  carrier  against  the  consignee.  Lo  wen  burg  v.  Jones,  56 
Miss.  688. 


332  THE   LAW   OF   BAILMENTS 

the  receiving  and  contracting  carrier  should  with  reasonable 
despatch  notify  his  customer ;  ^  and  particularly  should  the 
customer  receive  due  notice  of  some  prospective  inability  of 
which  the  first  carrier  becomes  cognizant  in  good  season.^ 
And  a  carrier  whose  contract  expressly  limits  his  responsi- 
bility to  safe  carriage  over  his  own  road  and  delivery  to  the 
connecting  carrier,  and  to  a  guaranty  of  the  through  rate,  is 
entitled  to  notice  if  the  later  carrier  refuses  to  recognize  such 
rate.^  Notice  by  the  customer  of  some  prior  extortion  or  de- 
fault charges  the  carrier  who  conducts  himself  afterwards  in 
disregard  thereof.*  A  carrier  who  receives  under  special  in- 
structions of  importance  should  transmit  such  instructions 
with  tlie  goods.^  And  a  carrier  wlio  receives  goods  from  an- 
other carrier,  knowing  that  a  through  contract  has  been  made 
and  the  price  of  transportation  paid  in  advance,  can  assert  no 
lien  on  the  goods  for  transporting  over  his  own  line.^  In 
general,  good  faith  and  a  reasonable  diligence  and  discretion 
should  be  manifest  here  as  in  single  transportation^ 


1  §  611 ;  10  Mo.  App.  134. 

2  Notice  to  the  first  carrier  that  the  connecting  line,  owing  to  a  block- 
ade of  freight,  cannot  receive  and  transport  the  goods,  will  not  relieve  the 
first  from  liability  for  damages  caused  by  the  delay,  if  he  fails  to  notify 
the  shipper.     Petersen  v.  Case,  21  Fed.  (U.  S.)  885. 

2  In  the  absence  of  such  notice,  no  damages  can  be  demanded  beyond 
the  difference  between  the  rate  agreed  upon  and  the  rate  demanded;  his 
guaranty  being  strictly  construed.     Tardos  v.  Chicago  R.,  35  La.  An.  15. 

^  Knight  V.  Providence  R.,  13  R.  I.  572  (notice  of  damage  and  refusal 
to  take  where  goods  are  sent  to  a  consignee  by  instalments). 

^  North  V.  Transportation  Co.,  146  Mass.  315. 

6  3  McCr.  (U.  S.)  250. 

7  89  Mo.  App.  653;  135  Ala.  315. 


CHAPTER   X. 

INTER-STATE   COiMMERCE   LEGISLATION. 

509.  To  speak  of  the  origin  and  purpose  of  our  national 
legislation  concerning  inter-State  and  foreign  commerce.  Our 
State  legislatures,  soon  after  the  civil  war,  began  to  establish 
railroad  commissions  and  to  regulate  such  carrier  business. 
But  when  the  Supreme  Court  of  the  United  States  decided 
presently  that  all  such  State  regulation  must  be  confined  to  a 
carrier  business  strictly  local,  and  could  not  extend  to  a  con- 
tinuous transportation  which  railway  companies  conducted 
beyond  such  boundaries  to  some  otlier  State,  territory,  or 
foreign  country,  without  infringing  upon  the  constitutional 
sovereignty  of  the  United  States  over  all  inter-State  and  for- 
eign commerce,^  Congress  promptly  intervened  with  a  national 
statute  of  corresponding  tenor. 

510.  The  "Inter-State  Commerce  Act  of  1887,"  SO  called, 
established  accordingly  for  our  whole  Union,  by  way  of  first 
experiment,  a  uniform  regulation  of  the  common  inland  car- 
riage of  persons  and  property  wholly  by  railroad  or  partly 
by  railroad  and  partly  by  water,  wherever  a  continuous  trans- 
portation, inter-State  or  foreign,  was  contemplated.^ 

511.  The  general  purpose  of  this  comprehensive  Federal  en- 
actment was,  though  experimental  and  initiative,  to  promote 
and  facilitate  railway  commerce  by  the  adoption  of  regula- 
tions ;  to  make  charges  for  transportation  just  and  reasonable ; 
and  to  forbid  undue  and  unreasonable  preferences  or  discrimi- 
nations. Congress  had  in  view  the  whole  field  of  United 
States  commerce  (except  commerce  wholly  within  a  State)  : 

1  Wabash  R.  v.  Illinois,  118  U.  S.  557  (1886).  And  see  Debs,  Re, 
158  U.  S.  564. 

2  §  611  a;  Act  Feb.  4,  1887,  c.  104,  24  Stat.  379 ;  145  U.  S.  263. 


334  THE  LAW  OF  BAILMENTS 

as  well  that  between  the  States  and  territories  as  that  going 
to  or  coming  from  foreign  countries.^ 

512.  The  Inter-State  Commerce  Commission,  created  under 
this  act  of  1887  as  a  board  of  live  persons  who  are  paid  highly 
honorable  salaries  and  hold  by  a  plan  of  rotation  for  six  years 
each,  exercises  the  general  supervision  of  railroads  as  provided 
by  Congress,  with  or  without  intervention  and  assistance  from 
the  United  States  courts,  as  the  case  may  require,  but  with 
somewhat  restricted  powers.^ 

513.  Inquisition  by  this  Commission,  with  process  of  sub- 
pcena  for  its  proper  ascertainment  of  the  facts  in  a  given  case, 
is  strengthened  by  later  legislation.^  Circuit  courts  of  the 
United  States  use  their  process  in  aid  of  inquiries  before  the 
Commission,  upon  judicial  principles,  and  with  due  reserva- 
tion to  every  individual  of  his  constitutional  rights  ;  but  any 
judgment  rendered  in  court  is  not  simply  ancillary  to  the 
Commission,  but  of  full  and  independent  judicial  effect.* 

514.  The  principle  iipon  which  discrimination  and  preference 
among  patrons  are  forbidden  in  inter-State  and  foreign  carriage 
of  goods  by  this  new  legislation  is  substantially  the  same  as 
previously  applied  by  England  and  various  American  States 
in  legislation.^  It  is  not  all  discriminations  or  preferences 
that  fall  within  the  statute  inhibition ;  but  only  such  as 
are  unjust  or  unreasonable.^  Rebates  or  drawbacks  by  way 
of  preference  violate  the  language  and  spirit  of  the  enact- 

1  §  611a;  Texas  R.  v.  Commission,  162  U.  S.  197,  212,  233. 

2  §  611b;  43  Fed.  (U.  S.)  37,  cited  with  approval  in  162  U.  S.  197; 
74  Fed.  (U.  S.)  715.  And  see  162  U.  S.  197,  204;  145  U.  S.  264.  This 
commission  cannot  fix  rates  in  advance.  162  U.  S.  184  ;  74  Fed.  (U.  S.) 
784; 101  Fed.  779. 

3  §  611  c.    See,  as  to  immunity  of  witness,  161  U.  S.  711 ;  194  U.  S.  25. 

4  See  154  U.  S.  447;  74  Fed.  (U.  S.)  784;  56  Fed.  (U.  S.)  925. 

^  §  611c.  "Unjust  and  mireasonable  "  charge,  discrimination,  prefer- 
ence, or  advantage,  foi-bidden.  Act  1887.  And  see  Act  INIarch  2,  1889, 
c.  382  ;  ante,  293,  299. 

^  162  U.  S.  197  (fair  modification).  The  fair  difference  between 
wholesale  and  retail  cannot  here  be  ignored.  145  U.  S.  263.  For  a  car- 
rier to  protect  himself  against  a  physical  disadvantage  he  is  under  in 
relation  to  rivals,  is  not  per  se  an  unlawful  discrimination.     Rebates  or 


INTER-STATE   COMMERCE  LEGISLATION  335 

ment  here  as  elsewhere.  But  such  rebate  or  unlawful  dis- 
crimination does  not  vitiate  and  make  void  a  bill  of  lading 
or  exempt  the  carrier  from  his  liabilities  under  the  contract 
of  carriage.^ 

515.  "  Pooling  earnings,"  as  it  is  called,  SO  as  to  reduce  com- 
petition among  railways  transporting  between  the  same  points, 
was  deemed  against  good  policy,  and  hence  in  a  national  sense 
forbidden.  Railroad  companies  have  since  contended  that 
unrestrained  competition  in  their  carriage  business  is  an  in- 
jury, rather  than  a  benefit,  whether  to  themselves  or  their 
customers. 2 

516.  The  "  long  and  short  haul "  prohibition  constitutes  an- 
other important  restriction,  under  the  act  of  1887,  upon  a  con- 
temporary mode  of  reducing  railroad  competition.  Carriers 
competing  for  traffic  between  distant  points  so  sharply  as  to 
reduce  their  through  rates,  would  sometimes  make  up  for  such 
sacrifice  by  fixing  rates  equivalent  or  proportionally  much 
higher  to  intermediate  points  on  their  respective  routes,  to 
wdiich  such  competition  could  not  extend.^ 

drawbacks  are  a  violation.  74  Fed.  (U.  S.)  803.  And  see  74  Fed.  784  ; 
58  Fed.  858.  As  to  affording  equal  facilities,  see  63  Fed.  (U.  S.)  775; 
11  C.  C.  A.  417  (connecting  carriers).  And  see  as  to  equal  express 
facilities,  ante,  299. 

1  151  U.  S.  368. 

2  See  act  of  1887,  §  5;  §  611  d.  Qucere,  whether  joint  traffic  contracts 
of  any  kind  between  railway  carriers  have  now  a  legal  validity.  166  U.  S. 
290  (act  1897);  Northern  Securities  Co.,  194  U.  S.  48. 

3  See  act  of  1887,  §  4.  §  611  e  ;  190  U.  S.  273  (competition  at  a  given 
point)  ;  31  Fed.  (U.  S.)  315.  As  to  sanctioning  an  apparent  evasion  of 
the  prohibition  by  leasing  intermediate  trackage  rights,  see  56  Fed.  (U.  S. 
C.  C.)  925;  Chicago  R.  v.  Osborne,  10  U.  S.  App.  430.  And  see  63  Fed. 
(U,  S.)  903;  190  U.  S.  274  ;  52  Fed.  (U.  S.)  917. 

For  inter-State  or  foreign  transportation  of  animals,  etc.,  the  regula- 
tions imposed  by  act  of  Congress  are  paramount  to  all  provisions  by  local 
statute.     Reid  v.  Colorado,  187  U.  S.  137. 


PART   VII. 
CARRIERS   OF   PASSENGERS. 


CHAPTER  I. 

MATTERS  PRELIMINARY   TO   THE  JOURNEY. 

517.  The  carriage  of  passengers  is  no  bailment  in  the  legal 
sense,  nor,  indeed,  is  the  carriage  of  human  beings ;  though 
formerly  the  principle  of  distinction  appears  not  to  have  been 
clearly  apprehended.^  But  indirectly,  and  with  incidental 
reference  to  the  passenger's  baggage,  there  is  unquestionably 
a  bailment;  and  a  bailment  subject,  as  we  shall  sufficiently 
show,  to  the  general  law  of  common  carriers,  and  the  assump- 
tion of  an  extraordinary  risk  on  the  part  of  the  public  trans- 
porter.2  j^  jg  only  in  an  age  comparatively  modern  that  the 
public  transportation  of  persons  from  place  to  place,  on  hire, 
has  in  England  and  America  called  for  the  intervention  of 
courts  and  tlie  unfolding  of  legal  principles.^  While  the  car- 
rier of  passengers  is  so  often  in  our  law  a  common  carrier 
and  a  bailee  besides,  he  is  directly  entitled  to  consideration 
in  any  work  on  bailments,  because  in  so  many  respects  the 
service  of  carrying  human  beings  closely  corresponds  to  that 
of  carrying  goods  and  chattels,  in  legal  principle ;  and  the 
decisions  furnish  legal  analogies  of  much  advantage  to  the 

1  While  negro  slaves  were  "chattels"  by  local  law,  local  decisions 
were  sometimes  thus  classified  ;  but  by  our  definition  only  personal  prop- 
erty can  be  the  subject  of  bailment.     Ante,  1  ;  §  612. 

2  See  c.  4,  post. 

8  White  V.  Boulton,  Peake,  81,  tried  in  1791,  before  Lord  Kenyon, 
appears  to  be  the  first  recorded  case  at  our  law,  where  a  person  sued  to 
recover  damages  done  him  as  a  passenger.     §  612. 


CARRIERS  OF  PASSENGERS  337 

student  of  bailment  law,  while  in  the  points  of  unlikeness 
the  very  contrast  is  impressive.^ 

618.  Matters  preliminary  to  the  journey  may  be  discussed 
separately  under  the  following  heads :  (1)  Who  are  Carriers 
of  Passengers.  (2)  Who  are  Passengers.  (3)  Obligation  to 
receive  for  carriage.  (4)  Passage  tickets  and  fares.  (5)  Right 
of  action  agfainst  the  carrier  for  his  inexcusable  refusal  or 
failure  to  receive.  (6)  Legislation  concerning  fares  and  the 
carrier's  obligation  to  receive.^ 

519.  (1)  Who  are  carriers  of  passengers.  This  relation,  like 
that  of  freight  carrier,  may  be  either  public  or  private,  though 
the  law  deals  chiefly  with  the  former  class ;  applying  to  its 
members  the  general  style  of  carriers  of  passengers.  The 
carrier  of  passengers,  that  is,  our  public  carrier,  may  be  (1)  a 
carrier  by  land,  or  (2)  a  carrier  by  water ;  but  the  practical 
difference  between  these  two  classes,  in  respect  of  the  carrier's 
rights  and  obhgations,  is  rather  one  of  detail  than  principle  ; 
and  this  difference  we  shall  take  occasion  to  notice  as  we 
proceed.^     One  is   not  forced  into    the   position   of   carrier 

1  §  612. 

2  §  613. 

,  3  §  614;  ante,  276-282 ;  Lemon  v.  Chanslor,  68  INIo.  340  (hackinen).  The 
proprietors  of  stage-coaches,  hacks,  passenger  wagons,  cabs,  and  omni- 
buses, who  hold  themselves  out  to  the  public  for  the  general  convey- 
ance, under  their  own  drivers,  of  persons  from  place  to  place,  are  familiar 
instances  of  public  carriers  of  passengers  by  land.  To  this  class  belong 
also  railway  companies,  the  most  extensive  carriers  of  passengers,  as  well 
as  of  freight,  known  to  modern  times;  and  these  sometimes  perform  their 
vocation  as  horse  or  electric  railways,  though  most  commonly  hitherto 
propelled  by  steam,  when  on  a  large  scale,  the  means  of  locomotion  enter- 
ing as  an  essential  element  into  the  character  of  the  public  vocation  it- 
self. §  614,  a7ite,  278.  Among  the  recognized  public  carriers  of  passen- 
gers by  water  are  ships  and  vessels,  particularly  packet  ships,  steamships, 
steamboats,  ferries,  and,  to  some  extent,  the  humbler  boatmen  or  barge- 
men; and  this,  as  the  case  may  be,  whether  the  propelling  means  offered 
be  steam,  as  used  for  side-wheel  craft  and  what  are  called  propellers,  or 
sails,  or,  for  short  distances,  oars  and  human  exertion.  Ante,  280.  It  is 
obvious,  from  this  list,  that  the  public  carrier  of  passengers,  whether  by 
land  or  sea,  is  not  necessarily  a  carrier  of  passengers  only,  ajjart  from 
freight,  nor  of  passengers  having  baggage. 

22 


338  THE   LAW   OF  BAILMENTS 

for  passengers  by  permitting  persons  to  travel  free  occasion- 
ally in  connection  with  some  private  pursuit  of  freight 
tran  sportation  .^ 

519  a.  The  responsible  public  transporter  is  to  be  here  consid- 
ered, as  in  the  case  of  a  common  carrier  of  goods ;  '^  though 
mider  certain  qualifications.  Where,  for  instance,  through- 
passage  tickets  are  sold  over  the  routes  of  connecting  carriers, 
the  principles  which  we  discussed  with  reference  to  the  car- 
riage of  goods  come  into  operation.  Doubtless  the  carrier 
company  which  sells  the  ticket  may  by  contract,  express  or 
implied,  bind  itself  to  be  responsible  for  the  entire  route. 
But,  as  the  better  authorities  appear  to  view  the  rule,  the 
sale  of  the  through  ticket,  and  receipt  of  the  through-passage 
fare,  is  not  conclusive  on  this  point,  and  less  so,  indeed,  as 
concerns  the  person  of  a  passenger  than  his  baggage  or  gen- 
eral freight,  or  even,  as  to  the  right  on  his  part  to  be  car- 
ried tln"ough.  Hence  the  assumption  of  a  partnership  or 
mutual  agency  as  to  the  passenger's  own  safe  carriage,  free 
from  personal  injury,  or  that  the  selling  carrier  sets  himself 
forth  as  a  principal,  employing  agents  for  that  purpose,  is  less 
admissible,  with  respect  to  the  passenger's  personal  carriage, 
than  the  theory  that  the  carrier  selling  the  ticket  acts,  in  this 
respect  onl}'-,  as  the  agent  of  connecting  carriers.^  The  special 
undertaking  on  this  point  should  be  gathered  in  any  case 
from  the  circumstances ;  and  the  safer  course,  in  selling 
through  tickets,  is  to  have  them  printed  so  as  to  show  clearly 

1  See  74  Fed.  (U.  S.)  517.  Louisiana  constitution  (ib.),  which  de- 
clares all  railways  common  carriers. 

^  §  615;  a7ile,  283.  While  a  sleeping-car  company  is  not  strictly  liable 
on  the  footing  of  an  innkeeper  or  common  carrier,  a  passenger  may  gen- 
erally assume  a  sleeping-car  to  be  under  the  management  of  the  company 
running  the  train,  and  may  recover  for  injuries  accordingly.  Penn.  Co. 
V.  Roy,  102  U.  S.  451;  Thorpe  v.  N.  Y.  Central  R.,  7G  N.  Y.  402;  Cleve- 
land il.  V.  Walrath,  38  Ohio  St.  461. 

3  §  615;  Blake  v.  Great  Western  R.,  7  IL  &  N.  087  ;  Knight  r.  Port- 
land R.,  56  Me.  234;  Nashville  R.  v.  Sprayberry,  9  Ileisk.  (Tenn.)  852; 
Sprague  v.  Smith,  29  Vt.  421 ;  Ellsworth  v.  Tartt,  20  Ala.  733;  Foulkes 
V.  Metropolitan  R.,  4  C.  P.  D.  267;  5  C.  P.  D.  157  ;  Hartan  v.  Eastern 
R.,  114  Mass.  44. 


CARRIERS   OF   PASSENGERS  339 

whether  or  not  the  first  carrier  intends  that  each  carrier  shall 
be  liable,  concerning  the  passenger's  safety,  for  his  own  route 
alone. ^ 

520.  Carriers  of  passengers  may  have  a  close  connection  with 
reference  to  the  use  of  the  same  depots,  stations,  or  tracks. 
And  here  the  inclination  is  to  require  each  carrier  to  look 
after  the  safety  and  comfort  of  his  own  passengers,  consis- 
tently with  his  public  undertaking  to  do  so.  Thus,  in  the 
case  of  railroad  companies  using  a  common  passenger  depot 
and  common  tracks  of  approach  and  departure,  tliough  these 
should  belong,  in  fact,  to  one  of  the  companies  alone,  the  depot 
and  tracks,  when  used  in  common  at  the  point  of  connection, 
may  be  considered  the  depot  and  track  of  each  relatively  to  its 
own  operations  and  business ;  and  the  one  company  must  pro- 
tect its  own  passengers,  who  are  not  themselves  at  fault, 
against  injury  from  the  trains  of  the  other  company ;  though 
for  negligence,  exclusively  of  the  other  company,  while  its 

1  §  615 ;  Burke  v.  South  Eastern  R.,  5  C.  P.  D.  1.  But  such  expres- 
sions are  not  always  found  serviceable.  Railroad  Co.  v.  Harris,  12  Wall. 
(U.  S.)  65  (where,  however,  tliere  was  a  unity  of  ownership,  despite  the 
expression  of  the  ticket  coupons). 

As  to  breach  of  contract  in  failing  to  have  the  passenger  transported 
through  with  his  baggage,  see  post,  c.  4  (as  to  baggage)  ;  Van  Buskirk  v. 
Roberts,  31  N.  Y.  661 ;  17  N.  Y.  306 ;  28  N.  Y.  217  ;  70  Ga.  533 ; 
4  Sneed.  (Tenn.)  203.  And  see  §  616,  and  cases  cited,  where  the  subject 
is  discussed. 

As  to  actions  for  injury  to  life  or  limb  because  of  the  negligence  or 
misconduct  of  a  connecting  carrier  and  those  in  his  employ,  our  law 
manifests  reluctance  to  holding  the  carrier  responsible  whose  connection 
with  the  injury  consists  only  in  selling  the  through  ticket,  and  who 
neither  caused  the  injury  nor  was  conveying  the  passenger  when  the  in- 
jury was  sustained.  Two  strong  considerations  concur:  (1)  That  the  cir- 
cumstances of  receiving  a  bodily  injury  render  it  quite  natural  to  supply 
evidence  establishing  blame  on  the  carrier's  part  at  that  time  and  at  that 
place  performing  the  service.  (2)  That  inflicting  bodily  injury  may  be 
fairly  regarded  as  tortious,  rather  than  a  breach  of  contract;  and,  on  a 
familiar  principle,  even  the  agents  or  servants  of  another  are  suable  on 
their  tortious  acts,  as  being  outside  the  scope  of  a  conferred  authority. 
See  on  this  latter  point,  Foulkes  r.  Metropolitan  R..4  C.  P.  D.  267;  L.  R. 
2  Q.  B.  442  ;  7  H.  &  N.  987.  §  616.  See  further,  Chesapeake  R.  v.  How- 
ard, 178  U.  S.  153  (leased  road). 


340  THE  LAW   OF   BAILMENTS 

own  passenger  was  out  of  his  proper  place,  the  responsibiHty 
would  be  different.^  And  the  general  rule  appears  to  be  that, 
if  the  carrier  plainly  undertakes  to  carry  his  passenger  to  a 
certain  point,  lie  undertakes  that  the  intermediate  means  em- 
ployed for  that  purpose,  such  as  a  ferry-boat  to  cross  a  stream, 
or  tracks  of  another  road  used  to  run  upon,  shall  be  in  due 
order,  and  just  as  fit  for  transportation  as  though  they  were 
his  own  for  the  time  being.^  There  is,  however,  some  seem- 
ing discrepancy  in  the  authorities  in  this  I'espect.^ 

521.  In  general,  an  ordinary  passenger,  who  pays,  without 
deduction,  the  regular  fare,  shall  not  readily  be  assumed  to 
have  consented  that  the  carrier's  liability  shall  be  shifted  upon 
others,  or  that  the  responsibilities  shall  be  other  than  the  law 
prescribes.*  But  where  one  railway  company  receives  upon 
its  track  the  cars  of  another  company,  places  them  under  the 
control  of  its  agents  and  servants,  and  draws  them  by  its  loco- 
motive, over  its  own  road,  to  their  place  of  destination,  it  is 
held  to  have  assumed  toward  the  passengers  thus  accepted  the 
relation  of  common  carrier  of  passengers,  with  the  liabilities 
incidental  to  that  relation.^  And  the  practical  effect  is  to 
render  the  earlier,  whose  negligence  or  misconduct  causes 
the  mischief,  liable  to  the  passenger,  whatever  be  his  remedy 
as  concerns  the  company  with  which  he  contracted  for  a 
through  transportation.^ 

1  §  617;  Central  R.  v.  Perry,  58  Ga.  461.  And  see  Foulkes  v.  Metro- 
politan R.,  4  C.  P.  D.  267. 

2  7  H.  &  N.  987;  Thomas  v.  Rhymney  R.,  L.  R.  5  Q.  B.  226;  L.  R. 
6  Q.  B.  266  ;  McLean  v.  Burbank,  11  Minn.  277;  L.  R.  5  C.  P.  437  ;  Rail- 
road Co.  V.  Barron,  5  Wall.  (U.  S.)  90. 

3  See  as  to  collision,  wholly  because  of  the  fault  of  one  of  the  carriers 
using  common  tracks,  etc.,  Wright  i\  Midland  R.,  L.  R.  8  Ex.  137; 
L.  R.  5  Q.  B,  226;  L.  R.  6  Q.  B.  266;  Sprague  v.  Smith,  29  Vt.  421; 
3  McCr   (U.  S.)  208. 

4  §  618.  See  White  r.  Fitchburg  R.,  136  Mass.  321  (passenger  allowed 
to  sue  for  the  carelessness  of  the  brakeman  of  another  company). 

6  Schopnian  v.  Boston  &  Worcester  R.,  9  Cat;h.  (Mass.)  24. 
6  lb.     And  see  115  N.  C.  631. 

Construction  train  does  not  properly  receive  as  a  public  carrier,  nor 
impose   such   obligation  upon   either   the   contractors  or  the  company. 


CAKRIERS   OF  PASSENGERS  341 

522.  These  perplexing  questions  may  be  best  solved,  perhaps, 

by  reference  to  that  fundamental  principle  so  often  applied 
in  the  bailment  of  goods,  which  recognizes  the  creation  of  an 
agency  for  purposes  incidental  to  performing  the  transporta- 
tion, whetlier  by  virtue  of  special  contract  or  one's  public 
undertaking;  but  limits  such  agency  to  fulfilling  those 
requirements  which  constitute  a  due  performance  of  the 
principal  transporter's  obligation,  and,  beyond  making  the 
principal  broadly  answerable  for  his  servant's  or  subordinate's 
performance  of  the  duty  intrusted  to  him,  refuses  to  recog- 
nize an  agency  as  extending  to  the  commission  of  positive 
wrong.  Here  is  a  principle,  frequently  recognized,  though, 
it  must  be  confessed,  not  applied  without  producing  some 
confusion  ;  and  yet,  if  it  produce  less  confusion  than  before, 
it  is  worth  marking.^ 

523.  (2)  Who  are  passengers.  The  direct  obligations  of  a 
passenger  carrier  attacli  with  peculiar  reference  to  passengers, 
notwithstanding  a-  duty,  doubtless,  resting  upon  every  such 
party,  on  grounds  of  general  humanity  and  respect  for  the 
rights  of  others,  to  so  perform  the  transportation  service  as  not 
wantonl}'-  or  carelessly  to  be  an  aggressor  tow^ards  third  per- 
sons, whether  such  third  persons  be  on  or  off  the  vehicle.  A 
passenger,  in  the  legal  sense,  is  no  trespasser  upon  the  carrier, 
but  one  who  has  rightfully  taken  a  place  in  a  public  convey- 
ance, or  has  been  otherwise  accepted,  for  the  purpose  of  being 
transported  from  one  place  to  another.^  One  may  become  a 
passenger  in  the  sense  of  liaving  a  right  to  be  carried  ;  whereas 

12  Wall.  (U.  S.)  309  ;  18  Kan.  3i.  But  cf.  Peters  v.  Rylands,  20  Penn. 
St.  497  ;  Feital  v.  Middlesex  R.,  109  Mass.  398  ;  L.  R.  5  H.  L.  45. 

Ultra  vires  or  a  void  lease  cannot  be  set  up  in  avoidance  of  an  obligation 
voluntarily  assumed.  §  618.  Nor  that  one's  tracks  were  located  by  the 
public  authority,  (Md.)  o  Atl.  346.  The  receiver  in  charge  of  an  insol- 
vejit  railroad  may  be  sued  in  his  representative  character  when  the  pas- 
senger is  injured.  Little  v.  Dusenberry,  46  N.  J.  L.  614;  108  U.  S.  188. 
It  does  not  necessarily  follow  that  because  the  injured  passenger  may 
seek  redress  against  one  comijany,  he  cannot  at  his  election  hold  the  other 
responsible,  instead. 

1  §  619. 

^  Bouv.  Diet.  "Passenger." 


342  THE   LAW   OF   BAILMENTS 

the  right  to  recover  for  personal  injuries  received  may  sug- 
gest the  word  in  another  and  perhaps  a  more  generous 
sense.^ 

524.  It  may  be  important  to  determine  whether  one  is  a 
"  passenger  "  or  a  mere  trespasser,  or,  once  more,  a  servant  or 
employ^  of  the  passenger  carrier.  A  person  on  a  vehicle  or 
train  travelling  as  passengers  usually  travel  may  be  presumed 
a  passenger.^  One  who  is  employed  on  liire  or  for  his  per- 
quisites, to  perform  certain  duties  in  connection  with  the 
transportation,  may  be  pronounced  a  servant  of  the  carrier  ; 
but  where  one  pays  the  carrier,  instead,  for  his  travel  and  the 
privilege  of  transacting  a  business  of  his  own  on  the  convey- 
ance, such  as  selling  popped-corn,  books,  or  papers,  or  keeping 
a  bar  or  restaurant  for  the  convenience  of  general  travellers, 
even  though  he  is  to  perform  certain  convenient  functions 
besides,  as  part  of  the  consideration,  like  serving  iced  water, 
or  taking  charge  of  express  matter,  he  is  rather  to  be  held  a 
jjassenger  allowed  to  exercise  special  privileges  under  a  special 
contract.^  A  minor  child  may  be  a  passenger.^  Express 
agents  or  mail  agents  may  be  transported  free,  or  upon  special 
terms  of  favor ;  so  may  a  seller  of  newspapers  or  refresh- 
ments ;  ^  and  so,  too,  may  season-ticket  passengers,  and  the 
holders  generally  of  free  passes  ;  and  yet  these  are  properly 
denominated  passengers,  particularly  in  the  sense  of  having  a 
right  to  be  carried.^     But  where  one  steals  a  free  ride,  or, 

1  §  620. 

"  Louisville  R.  v.  Thompson,*  107  Ind.  442;  §  620. 

3  Commonwealth  v.  Vermont  R.,  108  Mass.  7  ;  Yeomans  v.  Contra 
Costa  Steam  Nav.  Co.,  44  Cal.  71. 

4  (Mo.)  2  S.  W.  315  ;  (Mass.)  8  N.  E.  875. 

6  Griswold  v.  N.  Y.  R.,  53  Conn.  371 ;  92  Va.  34. 

6  Hammond  v.  North-Eastern  R.,  6  S.  C.  130;  Steamboat  New  World 
V.  King,  16  How.  (U.  S.)  469;  Great  Northern  R.  v.  Harrison,  10  Ex. 
376.  Cf.  c.  2;  565,  post.  A  drover  travelling  on  a  railway  in  charge  of 
animals,  on  a  free  pass,  is  in  effect  a  passenger  for  hire.  Little  Rock  R. 
V.  Miles,  40  Ark.  298;  Maslin  v.  Baltimore  R.,  14  W.  Va.  180;  160  111. 
40.  Butcf.  17  Fed.  (U.  S.)  671  ;  64  Wis.  447;  7  Atl.  731.  And  as  to  one 
not  honafde  travelling  thus,  see  Gardner  v.  New  Haven  R.,  51  Conn.  143. 
A  route  or  mail-agent  in  the  employ  of  the  United  States  is  a  "  passen- 


CARRIERS  OF  PASSENGERS  343 

without  the  knowledge  and  consent  of  the  carrier  or  his  proper 
agent,  goes  on  board  with  the  intent  of  travelling  without  pay- 
ment, or  fraudulently  uses  another  person's  pass,  or  passes  by 
mistake  for  one  entitled  to  go  free  when  he  was  not  such,  he 
is  not  a  passenger,  but  rather  a  trespasser.^  Even  if  the  con- 
ductor or  other  employ^  of  the  carrier  allows  him  to  travel 
free  or  takes  a  perquisite  for  the  ride,  he  should  not  be  con- 
cluded a  passenger,  especially  if  riding  where  passengers  have 
no  right  to  be,  or  paying  to  one  not  entitled  to  collect  fares.^ 

525.  The  character  of  the  conveyance  or  of  the  part  of  the 
vehicle  occupied,  may  affect  such  an  issue,  especially  in  the 
case  of  railway-carrier  companies,  which  habitually  run  freight 
trains  and  passenger  trains  separately.  Where  a  railway  once 
admits  a  practice  of  conveying  passengers  for  hire  on  its  freight 
trains,  especially  if  some  fair  sort  of  accommodation  like  a 
caboose  is  afforded  them,  or  the  train  is  a  mixed  one,  the  com- 
pany may  incur  the  relation  towards  an  individual  who  in 
good  faith  takes  passage  in  such  a  car,  intending  to  pay  the 
fare  and  is  duly  accepted ;  notwithstanding  the  carrier's  private 
orders  on  the  subject.^  But  where  the  company  has  not  in 
fact  admitted  any  such  practice,  and  its  responsible  managers 
forbid  it,  one  who  rides  free  in  a  caboose  on  a  freight  train, 
afforded  for  employes  only,  or  in  some  other  unauthorized  and 
unsafe  place  for  passengers,  cannot  claim  that  the  passenger 

ger"  while  travelling  in  pursuance  of  duty.     96  Penn.  St.  256,  construing 

local  statute  ;  95  N.  Y.  562  ;  79  Tes.  371. 

As  to  whether  one  injured  was  a  passenger  or  servant,  see.  64  Tex.  549^ 
^  Union  Pacific  R.  v.  Nichols,  8  Kan.  505  ;  Planz  v.  Boston  R.,  157 

Mass.   377;    45  Minn.  268.     And  see  Toledo   R.  v.  Beggs,  85  111.  80; 

Muehlhauseu  v.  St.  Louis  R.,  91  Mo.  332. 

2  Ruoker  v.  Missouri  Pacific  R.,  61  Tex.  499  ;  Higgins  v.  Cherokee  R., 
73  Ga.  149;  153  Mass.  188  ;  61  Minn.  296;  66  Kan.  438.  As  to  the  duty 
owing  by  a  carrier  to  one  who  goes  aboard  simply  to  help  an  infirm  per- 
son to  her  place,  see  55  Ark.  428.  Assistance  thus  rendered  by  a  car- 
rier's employ^  might  dispense  with  that  of  such  third  party.  Ih.  See 
118  Ga.  227. 

3  §  621 ;  41  Or.  151 ;  Lucas  v.  Milwaukee  R.,  33  Wis.  41.  Acceptance 
of  passenger  on  a  freight  train,  59  Ind.  317;  64  Tex.  529.,  Or  on  a  con- 
struction train,  35  Kan.  185.     Or  a  hand  car,  64  Tex.  144. 


344  THE   LAW  OF  BAILMENTS 

relation  existed,  even  thougli  the  conductor  of  the  train  or 
some  other  employ^  invited  him  to  ride.^  The  case  becomes 
more  complex  when  the  instance  is  that  of  one  lawfully  a 
passenger,  who  passes  to  a  place  in  tlie  vehicle  oi-  on  the  train 
where  passengers  are  never  presumably  permitted  to  ride,  and 
the  more  so  when  the  agent  in  charge  of  the  carriage  gave  no 
sanction  to  his  act ;  as,  for  instance,  if  a  steamship  passenger 
should,  without  due  permission,  climb  into  the  rigging,  or  one 
by  railway  ride  upon  the  locomotive,  and  there  receive  an  in- 
jury. And  whether  such  a  party  be  regarded  as  not  a  passen- 
ger jiro  liao  vice^  and  not  rather  (since  the  logic  of  the  case 
permits  it)  a  negligent  contributor  to  his  own  injury,  it  would 
appear  that,  to  a  considerable  extent,  the  carrier  could  fairly 
set  up  such  act  in  his  own  exoneration.^  But  on  the  more 
favorable  showing  that  the  party  was  merely  in  a  part  of  the 
vehicle  or  on  a  car  of  the  train  where  his  ticket  did  not  prop- 
erly allow  him  to  remain,  and  yet  suitable  enough  for  his  safe 
conveyance,  one  could  claim  to  be  a  full  passenger,  the  more 
so  if  the  conductor  knowingly  permitted  him  to  stay  there ;  ^ 
though  not,  even  here,  so  as  to  free  the  case  wholly  from  the 
same  consideration  of  contributory  negligence ;  while  such  a 
ride  without  the  carrier's  due  permission  and  knowledge  must 
always  obstruct  his  right  of  action  to  recover  for  injuries 
which  would  not  have  occurred  had  he  been  in  his  proper 
place.'* 

1  Lygo  V.  Newbold,  9  Ex.  302 ;  Eaton  v.  Delaware  R.,  .57  N.  Y.  382 ; 
lli  Fed.  (U.  S.)  123;  Higgins  v.  Cherokee  R.,  73  Ga.  149;  Powers  r. 
Boston  &  Maine  R.,  153  Mass.  188;  Perkins  v.  Chicago  R.,  60  Miss.  726. 
See  156  Mass.  525  (circus  train). 

2  See  §  621  ;  22  Barb.  (N.  Y.)  91;  Chicago  R.  v.  Michie,  83  111.  427; 
Higgins  V.  Hannibal  R.,  36  lAIo.  418;  40  Ark.  298;  Rucker  v.  Missouri 
Pacific  R.,  61  Tex.  499.  One  who  rides  on  an  engine  with  due  permission 
is  not  debarred  from  suing  for  his  jiersonal  injury.  17  Fed.  (U.  S.)  671. 
But  a  station  agent  is  not  the  proper  ])erson  to  give  permission  to  ride 
on  top  of  a  car,  those  in  charge  of  the  train  knowing  nothing  about  it. 
40  Ark.  298. 

3  Dunn  V.  Grand  Trunk  R.,  58  Me.  187  ;  Creed  v.  Penn.  R.,  86  Penn. 
St.  l;)9.     See  next  chapter. 

"  Kentucky  Central  R.  v.  Thomas,  79  Ky.  160 ;  78  N.  Y.  S.  729. 


CARRIERS  OF  PASSENGERS  345 

526.  One  who  has  his  ticket,  and  is  present  to  take  the  oar 
or  other  vehicle  at  the  starting-place,  is  a  passenger,  though 
he  may  not  have  actually  entered  the  vehicle ;  for  the  passen- 
ger status  takes  effect  from  the  time  when  the  carrier  has 
accepted  the  party,  so  to  speak,  for  present  transportation.^ 
More  than  this,  it  is  held  that  there  may  be  an  acceptance  of 
a  party  as  passenger  before  even  the  vehicle  is  entered,  the 
ticket  bought  or  the  fare  paid.^  One  may  be  an  accepted 
passenger  while  bona  fide  waiting  for  the  vehicle  or  entering 
or  leaving  it ;  ^  or  a  paying  passenger  without  necessarily  pay- 
ing in  advance ;  *  but  he  is  not  a  passenger  before  he  offers 
himself  for  carriage.^ 

527.  (3)  With  respect  to  one's  obligation  to  receive  for  car- 
riage, the  carrier  of  passengers  is  bound,  according  to  his 
means  and  methods,  as  held  out  to  the  public,  to  receive  all 
fit  persons  Avho  may  choose  to  apply  and  are  ready  and  will- 
ing to  pay  for  tlie  transportation  ;  the  ground  of  this  obliga- 
tion being,  not  a  mere  private  contract,  at  one's  o^\^l  choice, 
but  the  fact  that  the  passenger  carrier  sets  up,  like  an  inn- 
keeper or  common  carrier  of  goods,  to  exercise  a  common 
public  employment  for  comjDensation.^  To  the  means,  the 
methods,  and  the  requirement  of  a  recompense,  apply  quite 
closely  the  rules,  with  their  qualifications,  which  were  set  forth 
under  the  head  of  Common  Carriers.'^ 

1  See  §  621 ;  Central  E,  v.  Terry,  58  Ga.  461 ;  Packet  Co.  v.  Clough, 
20  Wall.  (U.  S.)  528. 

2  Brien  v.  Bennett,  8  C.  &  P.  224  (omnibus-driver,  pulling  up  at  signal 
of  a  person  in  the  street).  This  principle  is  not  readily  extended  to  street 
railways.  Creamer  i\  West  End  R.,  156  Mass.  320;  Donovan  v.  Hart- 
ford R.,  65  Conn.  201.  But  see  Gordon  v.  West  End  R.,  175  Mass.  181 
(one  who  hails  to  get  on  board). 

8  136  Mass.  552  ;  137  Mass.  210  ;  98  N.  Y.  494 ;  32  Minn.  1. 

*  Nashville  R.  v.  Messino,  1  Sneed  (Tenn.),  220. 

^  Webster  v.  Fitchburg  R.,  161  Mass.  298.  Wherever  passengers  are 
usually  allowed  to  board  the  train,  one  may  become  a  full  passenger  by 
entering  there.     148  Mass.  348. 

6  §  632;  3  Brod.  &  B.  .54;  2  Sumner  (U.  S  ),  221.  See  Bennett  v. 
Peninsular  Co.,  6  C.  B.  775. 

'  Ante,  291.     Even  a  sleeping-car  company  has  no  right  to  discrimi- 


346  THE  LAW  OF  BAILMENTS 

528.  But  the  obligation  to  receive  has  qualifications,  as  Olir 
statement  indicates,  and  analogous,  indeed,  to  those  observed 
in  treating  of  common  carriers  of  goods.  The  carrier  of  pas- 
sengers may  stop  receiving  when  his  vehicle  is  full,  nor  need 
he  accept  passengers  to  travel  by  other  modes  of  conveyance 
or  other  vehicles,  or  upon  different  journeys,  with  different 
stopping-places  and  at  different  times,  from  what  he  holds 
himself  out  as  ready  to  furnish  or  perform. ^  One  whose 
vocation  extends  to  both  passengers  and  freight,  like  a  railway 
carrier,  is  not  bound  to  carry  freight  on  passenger  veliicles  or 
by  passenger  trains,  nor  passeingers  on  freight  vehicles  or  by 
freight  trains  ;  but  he  may  regulate  fairly  for  liimself  how  the 
double  duty  shall  be  performed.^  We  have  observed,  however, 
that  a  carrier  may  waive  his  rights  in  these  and  kindred  re- 
spects ;  and  where,  as  is  now  so  usual,  passage-tickets  are  sold 
or  given  out  in  advance  without  any  express  proviso  as  to 
there  being  room,  the  undertaking  assumed  on  the  carrier's 
part  is  to  furnish  room  to  all  who  present  tickets ;  this 
principle  applying  generally  to  the  unqualified  reception  of 
passage-fares  by  the  carrier  or  his  proper  agent,  though  mani- 
festly most  appropriate  to  railway  travelling,  where  cars  are 
so  constantly  attached  to  each  train,  not  by  advance  computa- 
tion, but  according  to  the  number  of  pfersons  who  may  present 
themselves  at  the  time  advertised.^  A  passenger  who  has 
thus  paid  his  fare  is  entitled  to  due  accommodation,  especially 
when  he  is  to  go  a  long  distance ;  if  accommodation  can  be 
made,  the  carrier's  servants  are  bound  to  provide  it  for  him 

nate  in  selling  its  vacant  berths.  Nevin  t\  Pullman  Car  Co.,  100  111.  222. 
Must  serve  the  public  alike.  3  Brod.  &  B.  54;  4  Esp.  260  ;  Tarbell  v. 
Central  R.,  34  Cal.  61G  ;  Bennett  v.  Button,  10  N.  H.  481  (monopoly 
arrangement  with  another  carrier  no  excuse). 

1  §  623  ;  ante,  20,5. 

2  Arnold  v.  Illinois  Central  R.,  83  111.  273,  280.  No  compulsion  to  run 
on  Sundays.  42  Wis.  23.  Though  he  may  waive  bis  right  in  this  respect 
considerably.     109  Mass.  398;  59  N.  Y.  126. 

3  See  8  E.  L.  &  Eq.  362  ;  16  Jur.  196.  A  carrier  by  ferry-boat,  who 
provides  the  number  of  ?eats  demanded  by  the  average  travel,  is  not 
remiss  in  duty  if  persons  are  sometimes  without  seats.  Burton  v.  Ferry 
Co.,  114  U.  S.  474. 


CARRIERS  OF  PASSENGERS  347 

on  request ;  ^  and  if  he  finds  tlie  ordinary  cars  of  his  train  full, 
he  cannot  be  treated  as  a  trespasser  when  he  goes  into  a  draw- 
ing-room car,  ladies'  car,  or  other  liigher-priced  or  special 
conveyance,  under  the  same  management,  for  the  particular 
transportation,  there  to  remain  until  there  is  a  vacant  seat  for 
him  in  the  ordinary  cars.^  The  contract  embodied  in  the  sale 
of  a  ticket  may  of  course  limit  one's  right  of  accommodation 
to  some  particular  trip  or  train.^ 

529.  Only  persons  who  are  suitable,  however,  need  be  ac- 
cepted ;  a  qualification  in  the  carrier's  favor  which  must  be 
very  guardedly  observed,  partly  with  a  view  to  his  personal 
advantage,  but  more  for  making  the  journey  reasonably  con- 
venient, comfortable,  and  decent  for  the  public.  For  instance, 
transportation  and  admission  to  the  carrier's  premises  may  be 
refused  to  one  who  seeks  to  avail  himself  of  such  opportunity 
so  as  to  injure  the  carrier's  own  business  by  soliciting  patron- 
age for  a  rival  line ;  *  for  while  the  carrier  may  not  subject 
his  passengers  to  an  oppressive  monopoly,  it  appears  well  con- 
ceded that  he  has  the  right  to  keep  to  himself  the  legitimate 
advantages  of  his  position,  such  as  establishing  an  exclusive 
agency  for  the  delivery  of  the  passengers'  baggage  contained 
on  board  the  car  or  vessel,  giving  some  other  carrier  the  monop- 
oly of  his  connecting  patronage,  or  furnishing  a  refreshment 
table,  as  a  convenience  to  those  he  transports,  and  a  source  of 
special  profit  to  himself.^  Again,  the  carrier  is  not  obliged  to 
accept  one  who  is  openly  at  the  time  or  even  habitually  drunk, 
gross  in  his  behavior  or  obscene  in  his  language,  lewd,  noisy, 

^  As  where  other  passengers  were  using  more  seats  than  they  were 
entitled  to.     69  Miss.  421. 

2  Thorpe  v.  N.  Y.  Central  R.,  76  N.  Y.  402  ;  Davis  v.  Kansas  City  R., 
53  IMo.  317  ;  Bass  v.  Chicago  R.,  36  Wis.  450.  But  he  is  not  justified  in 
exposing  himself  carelessly  to  danger,  where  he  has  no  seat.  Camden 
R.  V.  Hoosey,  99  Penn.  St.  492.  Yet  the  carrier  who  permits  his  cars  to 
be  overcrowded  so  that  passengers  ride  on  the  platform,  etc.,  is  bound  to 
additional  care  and  precaution.     205  Pa.  271.     See  183  Mass.  96. 

3  §  623. 

4  Jencks  v.  Coleman,  2  Sumn.  (U.  S.)  221,  224  ;  Barney  r.  Oyster  Bay 
Steamboat  Co.,  67  N.  Y.  301 ;  11  Blatchf.  (U.  S.)  233. 

^  /ft.  ;  §  623. 


348  THE   LAW  OF  BAILMENTS 

or  quarrelsome,  so  as  to  become  a  public  annoyance  to  the 
other  patrons ;  ^  though  discrimination  among  persons  for 
merely  habitual  and  not  actual  and  present  misbehavior  of  this 
sort  must  of  course  involve  a  perilous  responsibility  in  these 
days,  when  travelling  has  become  so  universal.  Nor  is  the 
carrier  obliged  to  receive  as  passengers  notorious  thieves, 
pickpockets,  gamblers,  or  other  criminals,  nor  fugitives  from 
justice,  nor  persons  infected  with  contagious  diseases ;  since 
respect  for  the  laws,  and  the  vital  interests  of  the  carrier  him- 
self and  the  general  passengers,  besides,  demand  the  exclusion 
—  and  where  life  and  health  would  be  imperilled,  the  impera- 
tive exclusion —  of  all  such  persons.^  Yet,  in  all  instances 
like  these,  acceptance  of  the  fare  from  any  one  is  so  far  a 
waiver  of  the  carrier's  right  to  refuse  admission  that  the  car- 
rier ought  carefully  to  refuse  selling  tickets  to  such  persons, 
and  to  exclude  them  if  they  attempt  to  enter  the  vehicle  with- 
out tickets  ;  he  should  at  least  refund  readily  whatever  may 
have  been  paid  for  passage  on  their  behalf ;  and  if,  inadver- 
tently, such  a  person  is  admitted  without  some  previous 
notice  that  his  transportation  is  forbidden,  the  carrier  incurs 
the  risk  of  a  suit  where  he  ejects  him  afterwards,  especially 
if  no  previous  offer  be  made  to  refund  whatever  fare  the  party 
may  have  paid,  and  the  ground  of  ejection  is  simply  that  of 
habitual,  and  not  present  offence." 

530.  The  passenger-carrier  may  make  reasonable  rules  and 
regulations  in  connection  with  the  transportation.  Thus,  on 
a  railway  a  special  "  ladies'  car  "  may  be  designated  for  women 
who  travel  alone  or  with  their  male  relatives  or  friends  ;  ^  and 


1  2  Sumn.  (U.  S.)  221,  224,  225;  33  Kan.  543. 

2  See  4  Dill.  (U.  S.)  321.  As  to  fugitives  from  justice,  see  Pearson  r. 
Duane,  4  Wall.  (U.  S.)  005,  —  a  case  of  exceptional  circumstances. 

3  Putnam  v.  Broadway  R.,  55  N.  Y.  108 ;  4  Dill.  (U.  S.)  321;  70  N.  H. 
607.  As  to  permitting  one  to  take  a  man  on  board,  as  an  officer  who  has 
him  under  arrest,  see  87  Mo.  422.  "  Kon-union  "  workmen  are  not  to  be 
excluded  from  travelling  upon  any  suggestion  that  they  are  unpopular. 
Chicago  R.  v.  Pillsbury,  123  111,  9. 

*  Men,  unaccompanied  by  women,  must  respect  such  rules.  §624; 
Peck  V.  New  York  Central  R.,  70  N.  Y.  587  ;  55  N.  Y.  108;  Bass  v.  Chi- 


CARRIERS  OF  PASSENGERS  349 

saloons,  drawing-rooms,  and  staterooms  on  a  steamer  or  other 
passenger  vessel  may  doubtless  be  set  apart  for  a  similar  pur- 
pose.^ As  to  the  right  of  excluding  persons  of  color  from  cer- 
tain car  or  vehicles,  or  confining  them  to  a  particular  car  or  a 
particular  quarter  when  travelling,  judicial  opinion  in  this 
country  has  fluctuated  somewhat  with  the  vicissitudes  of  pub- 
lic opinion  regarding  the  interesting  question  of  negro  rights  ; 
nor  inconsistently  so,  since  the  reasonableness  of  a  carrier's 
regulations  at  any  period  or  place  ought  not  to  be  tested  re- 
gardless of  social  prejudice  and  prevailing  manners  among 
the  local  travelling  public.^ 

531.  (4)  Next,  as  to  passage  tickets  and  fares.  As  a  further 
qualification  of  the  passenger  carrier's  obligation  to  receive 
for  carriage  is  that  right  which  the  law  concedes  to  all  who 
exercise  a  public  calling,  of  requiring  due  recompense ;  and 
while,  on  the  one  hand,  such  a  carrier  can  demand  no  extor- 
tionate or  unreasonable  reward  from  any  one  such  as  might 
amount  to  a  practical  exclusion  or  hindrance  from  travel,  he 
may  unquestionably  require  to  be  paid  his  reasonable  charges, 

cago  R.,  36  Wis.  450  ;  Chicago  R.  v.  Williams,  55  111.  185.  A  fortiori,  if 
the  man  was  sent  politely  to  another  car.     94  N.  C.  318. 

1  States  differ  in  this  respect,  both  as  regards  custom  and  the  rule  of 
legislation.  Cf.  5  Mich.  520  ;  34  Cal.  594;  55  111.  185;  55  Penn.  St.  209; 
27  La.  An.  1 ;  88  N.  C.  536.  A  second-class  car  for  women  and  children 
should  not  be  a  smoking  car.     114  Ga.  159. 

■■^  To  speak  more  generally,  distinctions  in  the  means  of  transportation 
furnished,  on  considerations  not  of  sex  but  of  social  caste,  appear  more 
openly  admissible  in  England  and  European  countries  than  in  America, 
where  such  distinctions  are  averse  to  the  spirit  of  our  institutions  ;  and 
yet  of  late  years,  particularly  in  railway  travel,  there  has  been  a  growing 
disposition  manifested  to  run  special  drawing-room  car  trains,  and  furnish 
such  special  quarters  and  special  facilities  as  practically  to  adopt  and  es- 
tablish in  the  United  States  the  foi-eign  fashion  of  travelling  by  first-class 
and  second-class  cars.  And  such  distinctions  avail  very  fairly  in  long 
journeys,  lasting  night  and  day,  as  on  an  ocean  steamship.  A  gradation 
of  passage  rates  justifies  a  gradation  of  accommodation  ;  reserved  seats  or 
places  may  be  especially  charged  for ;  but  every  public  carrier  of  pas- 
sengers should  afford  reasonable  and  safe  facilities  for  all  who  pay  their 
fares  and  travel.  The  carrier  has  no  right  to  provide  for  the  comfort  of 
one  sex,  or  of  the  higher-price  passengers,  to  the  neglect  of  the  other  sex, 


350  THE   LAW  OF  BAILMENTS 

and  paid,  too,  in  advance.^  A  partj'^  who  has  once  paid  his 
passage-fare,  and  can  produce  his  proper  ticket,  is  not,  as  a 
rule,  to  be  treated  differently  from  other  passengers  of  the 
same  class,  nor  refused  admission  to  the  cars  or  vehicle  ;  but 
if  good  cause  really  exist  for  his  immediate  exclusion,  which 
the  carrier  ouglit,  in  justice  to  himself,  and  out  of  regard  to 
the  other  passengers,  to  insist  upon,  the  fare  must,  at  all 
events,  be  tendered  back  or  refunded ;  and  damages  against 
the  carrier  for  his  breach  of  contract  to  carry,  after  the  usual 
mode,  to  the  journey's  end  ought,  under  such  circumstances, 
to  be  heavy  where  the  exclusion  is  without  justice  and  good 
reason,^  especially  if  the  party  while  not  actually  misbehav- 
ing is  excluded  in  a  contemptuous,  insulting,  and  scandalous 
manner.^ 


or  of  those  who  pay  the  ordinary  rates.  §  624 ;  ante,  528.  And, 
whatever  the  carrier's  regulations,  they  must  be  neither  unreasonable 
nor  unreasonably  enforced.  Jennings  v.  Great  Northern  R.,  L.  R. 
1  Q.  B.  7. 

1  §625;   1  Esp.  27  ;  11  Neb.  117. 

As  compared  with  the  modern  practice  among  common  carriers  of 
goods,  there  are  three  aspects  in  which  that  among  common  carriers  of 
passengers  appears  strikingly  different :  (1)  The  passenger  carrier  usually 
receives  his  recompense  from  the  patron  or  customer  in  advance,  oc- 
casionally on  the  way,  and  only  very  seldom  at  the  termination  of  the 
transit;  and  that  greatest  of  inland  transporters,  the  radway  carrier, 
commonly  discriminates  thus  between  travelling  patrons  and  the  con- 
signors of  freight.  (2)  The  passenger  carrier  has  little  to  do  with  vari- 
able tariffs  of  rates  ;  but  commonly  grades  his  accommodations  and 
facilities,  on  a  well-considered  scale  of  prices ;  he  discounts,  too,  his  rates 
to  season-ticket  holders  or  purchasers  by  the  quantity,  or  on  a  round 
trip,  while  allowing  others  to  travel  on  terms  of  marked  favor,  or  even 
free.  (3)  The  almost  universal  use  of  passage-tickets  by  railways,  which 
are  issued  before  the  journey,  and  serve  on  the  way  as  the  voucher  of  the 
pa.ssenger's  right  to  be  in  the  vehicle,  virtually  concedes  that  the  bearer's 
fare  has  been  already  paid,  and  that,  whoever  such  party  may  be,  he  is 
accepted  as  a  passenger,  with  the  usual  rights  and  subject  to  the  usual 
rules. 

2  See  Chicago  R.  v.  Williams,  51  111.  185;  4  Dill.  (U.  S.)  321;  Pearson 
V.  Duane,  4  Wall.  (U.  S.)  (i05 ;  176  Mass.  275. 

8  §  625 ;  Coppin  v.  Braithwaite,  8  Jur.  875,  Ex.  And  see  next  chapter, 
as  to  ejecting  passengers. 


CARRIERS   OF   PASSENGERS  351 

532.  As  to  the  rates  of  carriage,  the  carrier  of  passengers 
when  miiestrained  by  statute,  may  charge  whatever  he 
pleases,  provided  tlie  charge  be  not  extortionate,  oppressive, 
or  unreasonable ;  nor,  as  it  would  appear,  is  the  charge  made 
to  one  passenger  conclusive  of  what  should  be  made  to  an- 
otlier,  since  the  common  law  requires,  not  that  all  should  be 
charged  alike,  but  that  none  should  be  charged  unreasonably 
high.i  But  public  policy  tends  to  tlie  view  that  the  grant  of 
anything  like  a  monopoly  of  carriage  facilities  to  individuals 
or  a  class  ought  to  be  discountenanced ;  and  while  equality  of 
rates  for  the  same  facilities  must  always  appear  reasonable, 
inequality  is  evidence  of  unreasonableness. ^ 

533.  Further  than  this,  the  modern  ticket  system  is  fundamen- 
tally one  of  special  contract,  and  subject  to  the  special-contract 
rules  we  have  elsewhere  detailed,  in  most  leading  respects ; 
though  some  cases  prefer  to  treat  the  ticket  as  a  mere  token  or 
voucher,  showing  that  one  has  paid  his  fare  and  is  entitled  to 
a  passage  as  indicated ;  ^  and  certainly  it  is  not  evidence  of  a 
contract  in  any  such  sense  as  to  comprehend  and  conclude  the 
actual  terms  of  passage,  and  merge  all  other  parol  or  written 
arrangements  in  point.*     As  construed  in  the  light  of  custom 

1  §  626 ;  ante,  293. 

2  lb. 

2  Elmore  v.  Sands,  54  N.  Y.  512,  515,  and  cases  cited. 

*  Van  Buskirk  v.  Roberts,  31  N.  Y.  661 ;  17  N.  Y.  306. 

It  is  seldom,  if  ever,  that  a  mere  ticket  professes  to  contain  all  the 
essential  terms  of  the  understanding  between  passenger  and  carrier; 
though  it  may  establish  this  understanding  in  various  particulars,  includ- 
ing the  qualifications  in  respect  of  baggage  liability.  The  full  agreement 
as  to  passage  is  derived  largely  from  schedules  which  give  the  time-tables, 
etc.,  and  general  rules,  so  far  as  these  are  brought  before  the  public,  and 
may  fulfil  the  requirement  of  usage  or  a  special  contract  with  the  party 
liimself ;  or  from  special  statements  made  by  the  carrier  or  by  his  proper 
agents,  whether  by  way  of  extension  or  waiver  of  the  usual  conditions. 
"  As  either  party  may  prove  terms  of  the  contract,  not  expressed  upon  the 
ticket,  so  either  party  may  prove  the  acceptance,  or  rejection,  or  waiver  of 
any  terras  thereon  indorsed.  The  ticket  is  not  a  written  contract  signed 
by  the  parties.  It  is,  at  most,  evidence  of  some  existing  contract  for  a 
passage  between  two  places  named,  and  that  the  holder  has  paid  the  fare 
demanded."     Burnham  v.  Grand  Trunk  11.,  63  Me.  298,  301. 


352  THE  LAW  OF  BAILMENTS 

the  language  of  the  usual  passenger- ticket,  however  briefly 
expressed,  mdicates  the  terminus  of  the  particular  journey, 
and  imports  a  promise  on  the  carrier's  part  to  take  the  pas- 
senger, or  presumably  the  bearer  (the  ticket  being  transfer- 
able), through  with  the  usual  despatch  and  facilities,  and  by 
the  usual  means,  subject  to  the  usual  qualifications  permitted 
by  law,  from  the  starting-place  to  the  point  of  destination. 
Custom  among  carriers  or  legislation  may  come  in  aid  or  con- 
trol of  the  terms  of  this  character  to  expand  or  expound 
them.i  One  who  buys  his  ticket  relying  upon  its  terms  and 
upon  the  published  schedule,  as  he  has  a  right  to  do,  accepts, 
in  fact,  the  benefits  of  the  carrier's  public  offer,  and  can  claim 
all  the  reasonable  advantages  of  such  special  contract.^  As  to 
disavantages,  the  passenger  in  general  may  be  held  bound  by 
his  knowledge  and  assent  to  the  special  or  customary  terms, 
so  far  as  reasonable  facilities  and  means  of  conveyance  are 
concerned.^  A  ticket  with  special  stipulations  is  in  the  na- 
ture of  an  express  contract  so  far  as  such  stipulations  are 
reasonable  and  conform  to  good  policy,  provided  at  all  events 
the  passenger  knew  seasonably  or  ought  to  have  known  sea- 
sonably that  they  were  expressed.* 

534.  Differing  rates  import,  in  general,  differing  facilities ;  and 
the  passenger  who  agrees  to  go  at  the  lesser  fare  may  have  to 
accept  the  lesser  conveniences.     Ordinary  rates  of  fare  imply 

^  §  627.  It  is  not  unusual  for  the  carrier's  posters,  advertisements, 
or  circulars  to  indicate  to  the  public  the  schedule  of  fares,  as  well  the 
time-tables,  besides  other  points  of  information  of  material  interest  to 
travellers. 

2  5  E.  &  B.  860;  Sears  v.  Eastern  R.,  14  Allen  (Ma.ss.),  433,  436; 
Hobbs  V.  London  R.,  L.  R.  10  Q.  B.  Ill  ;  Le  Blanche  v.  London  R.,  1  C. 
P.  D.  286 ;  8  E.  L.  &  Eq.  362. 

8  See  next  chapter;  Todd  v.  Old  Colony  R.,  3  Allen  (Mass.),  18; 
Steamboat  New  World  v.  King,  16  How.  (U.  S.)  469;  5  Ind.  339;  108 
Mass.  7  ;  1  Allen  (Mass.),  267  (even  though  he  did  not  read  his  ticket)  ; 
State  V.  Goold,  53  Me.  279;  22  Barb.  130.  And  see  Richardson  r.  Rown- 
tree,  (1894)  App.  217.  But  as  to  such  qualifications  with  reference  to 
baggage  liability,  or  with  immunity  from  damage  to  life  and  limb,  see 
post. 

*  §  627. 


CARRIERS  OF  PASSENGERS  353 

that  the  passenger  shall  be  carried  with  the  ordinary  facilities 
in  the  choice  of  vehicle,  time  of  starting,  rapidity  of  journey, 
means  of  conveyance,  and  choice  of  seats. ^  Adults  and  chil- 
dren, who  may  be  charged  differently,  are  ordinarily  accepted 
together  upon  such  an  understanding ;  though  it  seems  not 
unreasonable  on  street-cars,  or  for  short  distances,  to  pre- 
scribe lesser  facilities  as  to  seats,  for  children  who  pay  the 
lesser  rates,  than  foi*  grown  people.^  Season-ticket  liolders, 
or  tliose  who  purchase  tickets  by  the  quantity  or  round-trip 
tickets,  or  in  mileage  books,  may  be  presumed  entitled  to  the 
usual  facilities  ;  though  special  conditions  are  sometimes 
found  to  accompany  such  leduction  of  rates,  and  tliese  so 
far  as  reasonable  and  consistent  are  bindino^.3  jj^  Enq-land 
and  European  countiies  are  cars  of  the  first  class,  second 
class,  and  so  on  ;  the  inferior  car  being  furnished  less  luxu- 
riously for  the  lesser  fare  ;  a  custom  which,  though  little  prev- 
alent in  American  railway  travelling,  so  far  as  the  gradation 
is  directly  concerned,  finds  an  indirect  following  in  the  recent 
establishment  of  "  palace  "  and  "  drawing-room  "  cars,  where 
special  rates  are  demanded.  jMoreover,  in  our  modern  palace 
and  drawing-room  cars  are  the  railway  distinctions  of  luxury 
and  specially  reserved  seats ;  '^  in  travel  by  water,  too,  state- 
rooms are  graded  or  made  a  special  charge  in  like  manner  as 
compared  with  berths.  The  natural  and  reasonable  admission 
of  all  such  distinctions  as  these  is  to  establish  a  special  con- 
tract, express  or  impUed,  between  the  carrier  and  his  j)atrons, 
whereby  the  party  paying  the  higher  rates  travels  witli  more 
seclusion  and  comfort,  and  perhaps  may  be  privileged  to  go 
on  special  limited  trains,  or  at  unusual  times.     And  there  may 

1  See  Davis  v.  Kansas  City  R.,  53  Mo.  317;  §  628. 

2  Austin  V.  Great  AVestern  R.,  L.  R.  2  Q.  B.  442.  An  adult  jiassenger 
may  be  treated  as  responsible  for  the  fare  of  a  child  under  his  charge, 
and  tender  of  pay  for  himself  is  not  enough.  Philadelphia  R.  v.  Hoeflich, 
62  Md.  300. 

8  See  1  B.  &  S.  977;  105  Penn.  St.  142;  Ripley  v.  New  Jersey  R.,  31 
N.  J.  388.  As  to  a  condition  contained  in  a  season-ticket,  see  Cooper  v. 
London  R.,  4  Ex.  D.  88. 

*  See  Pullman  Palace  Car  Co.  v.  Reed,  75  111.  125;  73  111.  360;  55 
Ark.  134. 

23 


354  THE   LAW  OF  BAILMENTS 

be,  in  corresponding  manner,  special  limited  tickets,  issued  at 
reduced  rates,  for  particular  trips  only,  or  a  continuous  pas- 
sage ;  and  by  such  terms  the  purchaser  is  bound.^  But  terms 
of  the  special  undertaking,  not  well  established  already  by 
usage  or  legislation,  must  be  brought  home  to  the  passenger 
by  ticket  or  otherwise ;  and  where  limited  railway  tickets  are 
intended  to  restrict  the  holders  to  particular  times  or  trains, 
the  restriction  ought  to  be  brought  seasonably  to  the  particu- 
lar passenger's  attention,  in  order  to  bind  him  to  such  qualifi- 
cations/'^ General  advertisements  do  not  vaiy  the  plainly 
expressed  terms  of  the  ticket  itself.'^  In  the  absence  of  terras 
rendering  a  ticket  unassignable  it  passes  by  delivery.'*  And 
one,  at  all  events,  who  buys  a  general  ticket  for  full  fare  is 
not  bound  by  any  printed  limitations  not  just  in  themselves 
and  seasonably  brought  to  his  notice.^ 

1  A  reduced-rate  ticket,  limited  in  time  on  its  face,  cannot  be  used 
after  the  time  expires.  62  Mo.  95.  But  a  ticket  whose  nse  expires  on  a 
certain  day  is  good  if  one  begins  his  journey  before  midnight  on  that  day. 
Auerbach  v.  N.  Y.  Central  R.,  89  N.  Y.  281;  68  Ga.  219;  11  Mo.  App. 
463  ;  66  Cal.  191.     See  48  Ark.  529  (limited  ticket  expiring  on  Sunday). 

A  reduced-rate  ticket  may  be  limited  so  as  to  be  used  only  by  a  par- 
ticular individual  or  individuals;  and  this  is  often  the  case  with  season 
or  mileage  tickets,  which  are  so  expressed  as  not  to  be  transferable  at 
pleasure,  or  even  so  as  to  be  forfeited  if  transferred.  Limited  tickets  some- 
times require  the  buyer  to  be  identified  and  have  the  ticket  stamped  for 
the  return  passage.  "  See  17  Fed.  R.  880 ;  23  Fed.  R.  326  ;  73  Ga.  356 ; 
158  Penn.  St.  302;  42  La.  An.  880;  104  Tenn.  194.  All  such  limita- 
tions, if  intended,  should  be  expressed;  but  when  expressed  they  are 
usually  deemed  just  and  reasonable. 

2  Maroney  v.  Old  Colony  R.,  106  Mass.  153.  A  round-trip  ticket  fol- 
lows this  rule  ;  for  round-trip  tickets  are  presumed  to  be  good  until  used, 
in  absence  of  a  special  stipulation  to  the  contrary  in  the  ticket  or  actual 
notice  to  the  buyer  at  the  time  of  the  purchase.  Pennsylvania  R.  v. 
Spicker,  105  Penn.  St.  142. 

Conditions  on  a  ticket,  as  to  fare,  travel,  etc.,  which  are  plainly  ex- 
pressed and  in  view  of  the  rates  charged  are  not  unreasonable,  bind  the 
passenger ;  he  cannot  say  that  he  did  not  read  the  ticket.  73  Ga.  356  ; 
11  Phila.  597  ;  158  Penn.  St.  302 ;  1  Allen,  267. 

8  61  Miss.  194. 

*  Spencer  i'.  Lovejoy,  96  Ga.  657  ;  3  McCr.  (U.  S.)  249;  45  Minn.  53. 

6  Norman  v.  Southern  R.  (S.  C.  1903).     It  is  rather,  in  the  free  or 


CARRIERS   OF  PASSENGERS  355 

535.  The  special  restrictions  of  passenger  carriage  by  a  ticket 
must  if  reasonable  be  respected  ;  and  restrictions  are  all  the 
more  reasonable,  if  reduced  rate  or  other  special  considera- 
tion appears.^  Limitations,  in  point  of  time  or  trips,  upon 
the  use  of  passenger-tickets,  if  plainly  expressed,  are  com- 
monly sustained,  by  the  courts  as  reasonable  ;  more  especially 
where  the  tickets  themselves  are  issued  on  especially  favor- 
able terms  of  fare,  as  in  the  case  of  excursion  or  round- 
trip,  commutation  and  season  tickets  or  mileage  books ;  ^ 
though  such  limitations  should,  never  be  unjust  nor  so  nar- 
row as  to  deny,  practically,  the  full  right  of  passage  they 
profess  to   confer,  nor  be    construed  in  the  sense    that  the 

reduced-rate  tickets,  that  the  passenger  is  bound  to  notice  what  restric- 
tions, if  anj',  they  contain.     See  104  Tenn.  194. 

^  §  629.  The  holder  of  a  mileage  book  cannot  dictate  from  what  part 
of  the  book  the  conductor  shall  detach  coupons.  88  Me.  578.  Xor  insist 
upon  detaching  the  coupons.  82  Va.  250.  Nor  present  detached  coupons 
without  the  book.     146  Mass.  107. 

"  Good  for  this  trip  only."  4  Zab.  (X.  J.)  435;  11  Ohio  St.  457  ;  John- 
son I'.  Concord  R..  40  N.  H.  21-3;  11  Met.  121;  Elmore  v.  Sands,  54  N.  Y. 
512;  Dietrich  v.  Penn.  R.,  71  Penn.  St.  432. 

Coupon  tickets  over  various  roads.     1  Allen  (Mass.),  267 ;  40  Vt.  88. 

In  general,  however,  a  fare- ticket  sold  upon  no  special  limited  contract, 
and  for  the  ordinary  acconamodations  in  the  vehicle,  without  selection  of 
place,  is  good  for  a  continuous  passage  until  used.  24  Barb.  (N  Y.) 
514. 

A  ticket  entitles  one  to  travel  between  the  stations  named,  but  no  far- 
ther. 41  L.  T.  415.  So,  if  a  railway  ticket  reads  "  Portland  to  Boston," 
this,  it  is  held,  does  not  allow  one  to  travel  from  Boston  to  Portland,  but 
only,  according  to  its  tenor,  from  Portland  to  Boston.  Keeley  v.  Boston 
&  Maine  R.,  67  Me.  163.  And  see  106  Mass.  160.  Semhie,  otherwise,  if 
the  ticket  read,  as  is  not  uncommon,  "  Portland  &  Boston."  A  "  drover's 
pass  "  ticket  for  use  on  freight  trains  with  stock  cannot  be  used  on  a  pas- 
senger train.     Thorp  v.  Concord  R.,  61  Vt.  378. 

2  Hill  V.  Syracuse  R.,  63  N.  Y.  101  ;  Lillis  v.  St.  Louis  R.,  64  Mo.  464  ; 
Powell  V.  Pittsburg  R.,  25  Ohio  St.  70;  McElroy  v.  Railroad,  7  Phil. 
206.     And  see  Thompson's  valuable  note,  24  Am.  Reports,  22. 

Where  the  carrier  controls  both  a  direct  and  a  circuitous  route  between 
two  points,  it  may  more  naturally  be  assumed  that  a  restriction  confines 
the  passenger  upon  a  through  ticket  to  the  direct  route  rather  than  to  the 
circuitous  one.     See  Bennett  v.  New  York  Central  R.,  69  N.  Y.  594. 


35^  THE   LAW   OF   BxMLMENTS 

carrier  may  profit  by  his  own  default  of  duty,  to  his  patron's 
detriment.! 

536.  Reasonable  rules,  therefore,  as  to  passage  fare  may  be 
imposed  by  the  carrier  in  his  interests  or  those  of  the  general 
public  ;  though  not  unreasonable  rules.  Thus,  he  may  issue 
tickets  which  do  not  permit  the  passenger  to  stop  over  at 
pleasure.^  So  may  the  carrier  chai'ge  an  additional  rate  where 
tickets  are  not  purchased  before  the  passenger  goes  on  board' 
the  train  or  vehicle  ;  ^  for  it  is  not  only  a  convenience  in  keep- 
ing his  accounts,  but  a  great  safeguard  against  fraud,  that  the 
fare  be  taken  by  the  carrier's  agents  specially  appointed  for 
that  purpose  ;  though  this  presupposes,  in  consistency,  that 
the  passenger  is  allowed  such  opportunity  to  purchase  before- 
hand.*   Passengers  may  have  to  show  their  tickets  when  going 

1  Little  Rock  R.  v.  Dean,  43  Ark.  529.     But  see  41  Ohio  St.  276. 

A  round-trip  ticket  which  expressly  requires  to  be  stamped  and  signed 
by  ticket  agent  at  place  of  destination  before  it  can  be  received  on  return 
passage  must  be  reasonably  complied  with.  Boylan  (;.  Hot  Springs  R., 
132  U.  S.  146. 

^  §  630;  State  v.  Campbell,  32  X.  J.  309;  Cheney  v.  Boston  &  INIaine 
li.,  li  Met.  (Mass.)  121  ;  Breen  v.  Texas  R..  50  Tex.  43:  McClure  v.  Phila- 
delphia R  ,  34  iMd.  532 ;  Oil  Creek  R.  v.  Clark,  72  Penn.  St.  231.  Ticket 
limited  in  passage  to  a  day  may  or  may  not  be  reasonable.     105  La.  398. 

3  Ililliard  v.  Goold,  34  N.  H.  230  ;  18  111.  460;  Cleveland  R.  r.  Bartram, 
11  Ohio  St.  457;  State  v.  Chovin,  7  Iowa,  204;  Swan  v.  Manchester  R., 
132  Mass.  116;  39  Minn.  6. 

4  See  St.  Louis  &  Alton  R.  v.  South,  43  111.  176;  Nellis  v.  New  York  R., 
SON.  Y.  505;  18  111.  460;  Crocker  v.  New  London  R.,  24  Conn.  249; 
Jeffersonville  R.  v.  Rogers,  28  Ind.  1  ;  134  Ind.  100.  But  see  24  Conn. 
249  ;  53  Me.  279.  The  rule  of  discount  only  where  tickets  are  bought  at 
the  station  is  a  reasonable  one,  and  may  be  enforced  on  the  train.  Cin- 
cinnati R.  V.  Skillman,  39  Ohio  St.  444.  And  the  general  rule  appears  to 
be,  in  this  connection,  that  the  ticket-seller  is  not  bound  to  keep  his  office 
open  after  the  advertised  time  for  the  train  or  vehicle  to  leave.  Swan  v. 
Manchester  R.,  132  Mass.  116.  But  local  statute  sometimes  affects  this 
point.  And  see  lOS  Ga.  490;  67  111.  312  (unreasonable  requirement); 
82  Tex.  527.  A  passenger  who  finds  the  ticket-office  closed  when  he  sea- 
sonably presents  himself  to  purchase,  cannot  be  required  by  the  con- 
ductor to  pay  an  unreasonable  extra  sum  for  his  passage.  26  W.  Va.  800. 
The  practice  on  many  roads  is  for  the  conductor  to  charge  extra  and  give 
a  drawback  ticket  presentable  at  any  ticket-office. 

So  too  where  a  round-trip  ticket  must  be  stamped  for  return  pas- 
sage, the  carrier  should  have  his  agent  seasonably  on  hand.     114  Ga.  140. 


CARRIERS  OF  PASSENGERS  357 

aboard.^  But  all  regulations  concerning  fare  must  be  not 
only  reasonable  of  themselves,  but  interpreted  in  a  reasonable 
manner  as  between  carrier  and  passenger.  The  passenger 
ousrht  not  to  be  left  without  voucher  at  all  for  his  ticket 
taken  up,  where  there  is  still  a  long  journey .^  Nor  should  the 
rule  that  the  passenger  j)roduce  his  ticket  wlienever  required 
be  enforced  regardless  of  common-sense  and  the  conduct  of 
the  carrier  and  his  servants  rendering  such  production  im- 
possible.^    Nor  ought  a  traveller,  when  asked  to  produce  his 

1  As  in  passing  through  the  gate  to  the  track  at  a  railway  station. 
44  Minn.  4o8.  Where  the  gateuian  excludes  one  with  a  proper  ticket, 
the  carrier  is  liable.     71  ^Id.  lo5. 

The  passenger,  too,  may  be  required  to  exhibit  his  ticket  whenever 
called  upon  by  the  carrier,  or  by  his  proper  representative,  such  as  clerk, 
driver,  or  conductor.  31  N.  J.  388  ;  27  Md.  277  ;  15  N.  Y.  455  ;  97  Mich. 
439 ;  36  Conn.  287 ;  57  N.  J.  L.  703 ;  for  this  is  taking  a  suitable  pre- 
caution against  imposition.  So,  too,  is  the  rule  a  reasonable  one  which 
compels  the  passenger  to  surrender  his  ticket  on  the  vvay,  and  take  a 
conductor's  check  or  voucher.  22  Barb.  (N.  Y.)  loO  ;  Beebe  v.  Ayres, 
28  Barb.  575.  Or  the  restriction  upon  through  coupon-tickets  over  con- 
necting roads,  that  the  passenger  must  not  stop  over,  uidess  the  journey 
be  unreasonably  long  and  fatiguing  if  one  may  not  break  it.  43  Ark. 
529.  See  535.  Or  that  the  coupons  shall  be  worthless  if  detached.  114 
Mass.  44.  See  Jerome  i-.  Smith,  48  Vt.  230.  Tickets  for  continuous 
passage  do  not  import  a  right  to  stop  over  and  then  resume  the  journey. 
42  N.  J.  L.  449 ;  39  Ohio  St.  375.  But  some  States  recognize  a  general 
right  of  stop-over  on  separate  coupons,  unless  a  special  stipulation  is  made 
to  the  contrary.  72  Me.  388;  96  Ga.  637.  Stop-over  formalities  are  not 
usually  known  to  a  passenger,  who  may  rely  upon  information  given  him 
by  the  ticket-seller  or  the  course  of  the  conductor  who  permitted  the  stop, 
if  the  ticket  states  nothing.     See  New  Yoi-k  R.  v.  Winter,  143  U.  S.  60. 

One  who  buys  a  limited  ticket  is  bound  not  to  take  advantage  of  an 
opportunity  to  evade  its  terms.  88  N.  C.  526.  If  it  entitles  one  to  ride 
only  on  a  certain  through  train  which  does  not  stop  at  an  intermediate 
station,  the  passenger  who  is  carried  beyond  may  have  to  pay  fare  for  the 
additional  distance.  11  Lea  (Tenn.),  533.  One  who  signs  a  limited 
ticket  admits  full  knowledge  of  its  stated  terms,  and  due  assent.  11  P. 
526;  62  S.  C.  1. 

2  §  630 ;  20  N.  H.  250;  53  Md.  201.     But  cf.  20  N.  Y.  126. 

3  See  Baltimore  &  Ohio  R.  r.  Blocher,  27  Md.  277 ;  Dearden  i'.  Town- 
send,  L.  R.  1  Q.  B.  10  ;  Jennings  v.  Great  Northern  R.,  L.  R.  1  Q.  B.  7 
(train  divided  so  as  to  separate  a  party  travelling  together)  ;  64  Md.  Qi\ 
3  S.  C.  580. 


358  THE   LAW   OF  BAILMENTS 

ticket,  be  denied  a  reasonable  time  to  find  it;  and  this,  par- 
ticularly when  the  conductor  or  other  agent  demanding  it 
knows  that  the  passenger  is  no  trespasser.^  In  short,  the  rea- 
sonableness of  all  such  regulations  and  their  interpretation  is 
usually  a  question  of  law  for  the  court  to  determine.^ 

537.  If  the  passenger  claims  to  have  lost  his  ticket,  and  this 
is  a  transferable  one  such  as  the  finder  might  ride  with,  he 
must,  if  required,  pay  his  fare  over ;  and  so,  too,  where  the 
driver  or  conductor  cannot,  by  dispensing  with  such  repa}^- 
ment,  relieve  himself  from  pecuniary  accountability  to  the 
principal  who  employs  him.^  But  in  other  cases  of  loss,  our 
courts  incline  to  indulge  the  passenger,  on  the  ground  that 
the  carrier  has  once  received  the  actual  consideration  of  the 
passage,  and  ought  not  to  demand  more  if  evidence  be  ad- 
duced of  the  fact.* 

1  Maples  V.  New  York  R.,  38  Conn.  557.  Indulgence  should  be  shown 
to  the  old,  decrepit,  or  inexperienced  who  are  ignorant  of  travelling,  if 
their  conduct  indicates  good  faith.  14  Lea  (Tenn.),  128.  And  see  91 
N.  C.  506. 

2  See  §  630;  Jennings  v.  Great  Northern  R.,  L.  R.  1  Q.  B.  7  ;  Yedder 
V.  Fellows,  20  N.  Y.  126.  Special  representations  to  restrict  a  ticket  are  not 
good  if  made  after  its  sale  or  after  the  travel  begun  on  the  faith  of  it. 
109  Iowa,  136. 

8  §  631 ;  Jerome  v.  Smith,  48  Vt.  230;  Townsend  v.  New  York  Central 
R.,  56  N.  Y.  295;  (1896)  1  Q.  B.  256;  116  Ga.  53. 

*  Pullman  Palace  Car  Co.  v.  Reed,  75  111.  125  (ticket  for  berth  in  a 
sleeping  car)  ;  Maples  v.  New  York  R.,  38  Conn.  557. 

If  the  passenger,  when  his  fare  is  demanded,  produces  a  ticket  hav- 
ing a  hole  punched  in  it,  or  otherwise  defaced  in  such  a  manner  as  com- 
monly indicates  that  it  has  been  used  and  cancelled,  or  shows  a  pass  re- 
stricted by  its  terms  to  some  other  person,  the  presumption  arises  that  he 
is  trying  to  evade  his  just  fare,  and  unless  he  explains  himself,  or  tenders 
promptly  what  is  owing,  he  may  be  treated  as  an  intruder.  Terre  Haute 
R.  V.  Vanatta,  21  111.  188  ;  28  Barb.  (N.  Y.)  275.  For  the  English  rule, 
see  L.  R.  1  Q.  B.  10;  Austin  v.  (ireat  Western  R.,  L.  R.  2  Q.  B.  412. 
Offering  a  counterfeit  bill  for  fare  is  no  payment  or  tender  of  fare,  and  it 
should  be  refused.  54  Miss.  503.  And  the  same  may  be  affirmed  of  one 
who  attempts  to  use  the  detached  coupon  or  return  portion  of  a  ticket 
plainly  issued,  as  its  terms  indicate,  so  as  not  to  have  been  transferable 
to  him.  Langdon  v.  Howells,  4  Q.  B.  D.  337.  But  a  reasonable  ex- 
planation, and  compliance  with  the  demand  of  a  regular  fare,  ought  to 


CARRIERS   OF  PASSENGERS  359 

538.  Enforcement  of  fares  by  the  conductor  or  other  direct- 
ing agent  of  tlie  carrier  on  the  journey  is  expected  after  the 
customary  rules.  And,  as  between  the  conductor  and  pas- 
senger on  a  railway  train,  the  passenger's  ticket,  or  the  con- 
ductor's own  substituted  check,  or  some  regular  pass,  must 
usually  be  deemed  positive  evidence  of  the  passenger's  right 
to  travel  at  the  time  and  place,  and  must  be  produced  when- 
ever reasonably  called  for ;  in  the  absence  of  which  a  con- 
ductor is  not  to  blame  if  he  collect  fare.  ^  A  conductor  has 
no  right  to  accept  a  regular  fare  tendered  him,  and  then  ex- 
clude the  passenger  for  not  papng  the  additional  sum  charged 
those  who  fail  to  procure  tickets  before  they  go  on  board ;  ^ 
nor  ought  he  to  insist  upon  taking  up  the  ticket  tendered 
him  by  a  passenger  from  whom  he  exacts  a  full  fare,  because 
of  such  ticket's  invalidity.^  But  he  may  rightfully  demand 
the  regular  fare  from  any  passenger  who  presents  an  invalid 
ticket,  and  may  refuse  to  recognize  such  ticket  altogether. 
And  of  course  he  may  collect  full  fare,  where  no  ticket  at  all 
has  been  purchased.* 

539.  An  aggrieved  passenger  -who  has  purchased  a  regular 
ticket  is  strongly  favored  in  respect  of  his  accommodations. 
But,  whatever  his  course,  he  must  abide  consistently  by  it,^ 
A  passenger  may  decline  to  leave  the  train  or  vehicle,  if 
rightly  on  board,  notwithstanding  the  conductor  or  directing 
agent  of  the  journey  refuses  to  recognize  his  ticket.^ 

shut  out  controversy  on  such  points.  And  as  to  torn  or  defaced  tickets,  the 
fault  of  the  passenger  is  material  to  their  rightful  non-acceptance,  where 
they  were  genuine.  §632;  Rouser  v.  North  R.,  07  Mich.  565;  lijo 
Ind.  229. 

1  §  633 ;  Frederick  r.  Marquette  R.,  37  Mich.  342.  See  Burnham  v. 
Grand  Trunk  R  ,  63  Me.  298  (waiver)  ;  Sherman  v.  Chicago  R.,40  Iowa, 
45  (effect  of  conductor's  permission). 

2  Du  Laurans  v.  St.  Paul  R.,  15  Minn.  49;  §  633. 

3  Vankirk  v:  Pennsylvania  R.,  76  Penn.  St.  66;  14  Neb.  110. 

*  §  633.  As  to  the  right  of  ejectment  for  non-payment  of  fare,  see 
next  chapter. 

^  §  634.  As  to  his  right  to  refuse  payment  of  his  fare  for  want  of  a 
seat,  cf.  53  Mo.  317;  45  Ark.  368. 

«  Hufford  y.  Grand  Rapids  R.,  53  Mich.  118. 


3G0  THE   LAW   OF   BAILMENTS 

540.  The   regular   ticket-seller   of    a   railwray   or  other   carrier 

binds  the  company,  generally  speaking,  by  bis  representations 
to  the  purchaser  which  are  not  plainly  contradicted  by  other 
obvious  proof  of  the  carrier's  intention ;  and  a  traveller  may 
rely  with  more  confidence  upon  his  assurance  concerning  fares 
and  tickets,  and  the  contract  obligations  they  import,  than 
that  of  any  conductor  or  agent  on  board. ^  If  such  authorized 
agent  sells  a  ticket  as  good  when  it  is  not,  and  the  conductor 
refuses  to  honor  it,  the  carrier  may  be  held  hable;^  and  more 
than  this,  it  has  been  ruled,  where  a  passenger  who  buys  a 
railroad  ticket  of  the  authorized  agent,  believing  in  good 
faith  that  it  is  genuine  and  issued  rightfully,  tells  the  con- 
ductor of  the  train  so,  the  latter  is  bound  to  take  such 
facts  as  true.-^ 

541.  (5}  Next,  to  consider  one's  right  of  action  against  the 
carrier  for  his  inexcusable  refusal  or  failure  to  receive.  The 
carrier's  inexcusable  refusal  to  carry  or  admit  to  the  premises 
of  transportation  may  be  actionable,  even  though  unaccom- 
panied by  personal  violence;  for  the  party  excluded  need 
not  wait  to  be  maltreated,  nor  try  to  force  his  way  into  the 
vehicle,  in  order  to  avail  himself  of  the  carrier's  breach  of 
contract  or  of  public  duty.^     Similar  considerations  apply  to 

1  §  635;  INIurdock  v.  Boston  &  Albany  R.,  137  Mass.  293;  24  Hun 
(N.  Y.),  51 ;  91  Ga.  513.  See  Petrie  v.  Peun.  R.,  42  N.  J.  L.  M9  (per- 
mission of  a  first  conductor). 

2  lb. 

So  may  railway  passengers  rely,  until  differently  informed,  upon  what 
ticket  agents  or  train  agents  tell  them  as  to  the  stoppage  of  trains;  not, 
however,  in  disregard  of  other  reasonable  means  of  information.  Lake 
Shore  R.  v.  Pierce,  47  Mich.  277.  As  to  sales  of  railroad  tickets  by  un- 
authorized agents,  see  100  Penn.  St.  259 ;  .7:^  ^p;^.  n(U.  As  to  tickets 
sold  contrary  to  terms  therein  expressed,  see  117  Mass.  554;  50  Tex.  43 _^ 
34  Md.  532;  10  N.  Y.  Supr.  241. 

3  And  the  ejection  of  a  passenger  under  such  circumstances  is  visited 
upon  the  company  in  damages  as  for  an  assault.  Hufford  v.  Grand 
Rapids  R.,  53  Mich.  118. 

*  §  636.  See  Mar.shall  v.  INIatson,  15  L.  T.  n.  s.  514,  per  Bramwell,  B. 
(inducement  of  pas.seiiger  to  desist).  Such  refusal  would  have  been  in- 
excusable. See  chapter  3,  post ;  Commonwealth  v.  Power,  7  Met.  (Mass.) 
596;  Harris  v.  Stevens,  31  Vt.  79. 


CARRIERS  OF  PASSENGERS  361 

the  case  of  a  passenger's  exclusion  from  the  vehicle  after  he 
has  entered  it.^ 

542.  If,  from  any  cause,  the  transportation  is  prevented  for 
which  one  has  paid  his  passage-money  in  advance,  he  may,  at 
all  events,  recover  the  money  back  as  for  a  failure  of  the 
consideration  which  induced  such  payment.^  Should  the 
conductor  on  a  railroad,  through  some  mistake  or  default 
imputable  to  the  carrier  and  his  agents  and  not  to  the  pas- 
senger, fail  to  honor  a  ticket  which  was  duly  bought  and  is 
duly  presented,  an  action  as  for  breach  of  contract  will  lie ; 
or  for  tort  with  corresponding  damages,  if  the  passenger  was 
put  off  the  train,  besides,  or  treated  with  other  indignity.^ 
But  whether  the  passenger  thus  aggrieved  sues  in  contract  or 
tort  wise,  the  full  measure  of  his  damages  is  the  amount  of 
fare  demanded  to  carry  him  to  his  destination,  where  his  own 
misbehavior  invited  his  expulsion.*  A  breach  of  contract  to 
transport  on  the  carrier's  part  fairly  entitles  the  passenger  to 
go  to  his  destination  by  the  best  available  means  and  then 
recover  damages  sufficient  to  make  him  whole.  ^ 

543.  (6}  To  speak  of  legislation  concerning  fares  and  the 
carrier's  obligation  to  receive.  Legislation  may  be  found  to 
regulate  the  matter  of  reasonable  fares,  as  well  as  the  number 
of  persons  to  be  taken  in  a  particular  vehicle  for  carriage,  so 
as  not  to  overcrowd;^   and  our  license  and  inspection  laws 

^  See  next  chapter. 

2  Brown  v.  Harris,  2  Gray  (Mass.),  359;  Cope  v.  Dodd,  13  Penn.  St. 
33;  112  111.  295;  3  McCr.  (U.  S.)  249  (refusal  of  ticket  over  connecting 
road)  ;  4  Sawyer  (U.  S.),  114.  A  passenger  who  has  secui'ed  a  berth  to 
which  he  is  denied  access  without  good  excuse  may  claim  special  dam- 
ages for  his  discomfort  in  passing  the  night  elsewhere.     176  Mass.  275. 

3  Palmer  v.  Hrrilroad,  3  S.  C.  580.  In  Philadelphia  R.  v.  Rice,  64 
Md.  6:5,  the  passenger  bought  a  round-trip  ticket,  and  the  first  conductor 
by  mistake  punched  the  return  coupon,  and  then  rectified  his  error  by  an 
expedient  which  the  returning  conductor  would  not  recognize.  And  see 
88  Ind.  381. 

4  15  Fed.  (U.  S.)  57. 

5  See  §  636;  Abb.  Adm.  80.     And  see  next  chapter. 

6  Goins  V.  AVestern  R.,  68  Ga.  190;  68  S.  W.  743.  Exemplary  dam- 
ages are  rarely  given  unless  open  misconduct  is  shown,  wilful,  wanton, 
and  offensive. 


362  THE  LAW  OF  BAILMENTS 

with  especial  regard  to  water  carriage  usually  aim,  under 
penalties,  to  secure  this  as  one  of  their  most  desirable  ob- 
jects.^ Reasonable  facilities  for  transportation  are  likewise 
demanded  under  various  statutes ;  ^  independently  of  which 
the  carrier  who  finds  himself  with  more  persons  on  hand 
entitled  to  transportation,  who  have  already  bought  their 
tickets,  than  he  can  safely  accommodate  on  the  vehicle  pro- 
vided, ought  at  once  to  provide  another  for  accommodating 
the  overplus,  or  else  stand  to  the  damage  he  occasions  by  not 
transporting  as  he  agreed  to  do.^ 

1  See  §  637 ;  English  Acts  2  &  3  Will.  IV.  c.  120 ;  2  &  3  Vict.  c.  66, 
§  2 ;  U.  S.  Rev.  Sts.  §§  4252-4289.  Statutes  are  found  requiring  rail- 
ways to  furnish  suitable  cars,  etc.     61  Wis.  596. 

2  Railway  and  Canal  Traffic  Act,  1854,  17  &  18  Vict.  c.  31. 

3  §  637.  And  see  ib.  as  to  various  local  acts  with  respect  to  the  fares, 
the  right  of  penal  action,  etc. 

Fraudulent  evasion  of  fare  by  a  passenger  is  sometimes  made  punish- 
able by  statute.  L.  R.  1  Q.  B.  10.  Where  many  purchase  tickets  together 
it  is  fair  for  the  carrier  to  allow  reduced  rates.     145  U.  S.  263. 


CHAPTER   II. 

DUTIES   AND   RIGHTS   INCIDENTAL   TO   THE  JOURNEY. 

544.  I.    Let  us  consider  the  passenger  carrier's  general  duties 

with  reference  to  the  journey  before  considering  his  Uability 
for  injuring  or  killing  a  passenger  he  carries.  The  general 
duties  of  the  passenger  carrier  with  reference  to  the  journey 
comprehend  the  entire  period  from  the  acceptance  of  a  par- 
ticular passenger  for  transportation  to  safely  bestowing  him 
at  the  journey's  end ;  and  an  injury  to  his  person,  such  as 
should  call  for  judicial  intervention,  may  have  reference  to 
the  carrier's  breach  of  obligation  at  any  intermediate  point  or 
at  one  of  the  termini.  Legal  negligence  by  the  carrier  may 
consist  either  in  the  omission  of  a  duty  or  the  active  commis- 
sion of  a  fault.  1 

545.  The  carrier  ought  to  have  a  suitable  depot  or  place  for 
receiving  passengers  according  to  the  usual  custom  of  his  pro- 
fession ;  and  in  providing  means,  both  of  ingress  to  the  car  or 
vehicle,  and  egress  therefrom,  such  as  platforms,  planks, 
gangways,  and  drops,  there  must  be  nothing  improper, 
unusual,  or  carelessly  constructed  or  adapted,  whereby  a  pas- 
senger, using  ordinary  circumspection,  is  likely  to  be  endan- 
gered.^    The  usual  conveniences  for  entering  and  alighting 

1  §  638. 

2  §  639;  19  C.  B.  n.  s.  183  ;  Foulkes  v.  Metropolitan  R.,  4  C.  P.  D. 
267;  L.  R.  5  C.  P.  437;  11  Allen  (Mass.),  312  ;  37  La.  An.  648,  694;  Joy 
V.  Winnisimmet  Co.,  114  Mass.  63;  Haseltoa  v.  Portsmouth  R.,  71  N.  II. 
589.  See  L.  R.  1  C.  P.  300.  Cf.  ;  as  to  injuries  done  by  a  workman 
who  is  making  repairs  in  the  depot,  L.  R.  4  Q.  B.  693.  As  to  in- 
sufficient lights,  cf.  60  Miss.  442;  34  La.  An.  777.  See  also  165  Mass. 
346.  As  to  accumulation  of  ice  and  snow  on  car  platforms  during  a 
storm,  see  111  N.  Y.  488.  To  allow  a  hole  to  remain  long  in  the 
railway  platform  is  negligence.     80  Ky.  82.     And  a  railway  permitting 


364  THE   LAW   OF   BAILMENTS 

must  be  in  place  and  kept  in  reasonably  safe  and  good  condi- 
tion while  used.  ^  And  in  regulating  the  entrance  and  exit  of 
trains  or  vehicles,  and  the  departure  and  admission  of  passen- 
gers generally,  such  rules  of  precaution  must  be  observed  by 
the  carrier  as  great  prudence  and  a  due  regard  for  human 
safety  may  suggest.^ 

546.  Reasonable  regulations  concerning  such  depot  or  place 
for  receiving  may  be  prescribed  and  enforced  as  against  the 
general  public ;  and  this,  whether  we  regard  the  passenger 
carrier  in  such  capacity  or  as  the  owner  of  the  premises. 
Hackmen,  inn  porters,  newspaper  vendors,  and  others  whose 
pursuit  is  disconnected  with  the  duty  which  the  carrier  owes 
to  his  patrons,  must  comply  with  his  rules  of  admission  upon 
the  premises,  so  as  to  annoy  neither  the  carrier  nor  his  passen- 
gers.^ As  to  the  passengers  tliemselves,  it  may  be  both 
prudent  and  right  to  keep  them  in  waiting-rooms  excluded 
from  the  platform  until  the  car  or  vehicle  is  ready  to  receive 
them.  Into  any  railway  station  house,  while  it  is  kept  open, 
the  public  have  a  general  license  to  enter ;  but  they  must  not 

mail-bags  to  be  thrown  on  a  platform  while  the  train  is  running  at  full 
speed  is  liable  to  one  who  is  injured  while  waiting  as  passenger  for  his 
own  train.  Snow  v.  Fitchburg  R.,  136  Mass.  552;  Carpenter  v.  Boston  & 
Albany  R.,  97  N.  Y.  494.  As  to  keeping  the  depot  warm  in  cold  weather, 
etc.,  see  70  Ark.  136.  See  also  c.  3,  post,  as  to  suitable  modes  of  egress 
for  a  departing  passenger. 

Damage  remotely  connected  with  the  carrier's  own  breach  of  duty,  as 
where  one  while  in  a  railway  depot  is  bitten  by  a  dog  who  happens  to  run 
in  there,  is  not  readily  visited -upon  the  carrier.  Smith  v.  Great  Eastern 
R.,  L.  R.  2  C   P.  4. 

1  18  C.  B.  N.  s.  225.  But  cf.  9  Fost.  (X.  H.)  9.  And  see,  as  to  passenger 
carriers  by  water.  Packet  Co.  v.  Clough,  20  Wall.  (U.  S.)  528;  27  La. 
An.  377.     As  to  street-car  companies,  see  153  Penn.  St.  152. 

As  to  carelessly  shutting  the  entrance  gate  on  an  elevated  road,  see  53 
N.  Y.  Super.  91,  260.  And  see  as  to  assisting  passengers  on  board,  43 
Iowa,  276. 

2  See  16  C.  B.  179;  Central  R.  r.  Perry,  58  Ga.  401;  Wheelock  v. 
Boston  &  Albany  R.,  105  Mass.  203  ;  McDonald  v.  Chicago  R.,  26  Iowa, 
124  ;  Knight  v.  Portland  R.,  56  Me.  234;  Chicago  R.  v.  Dewey,  26  111  255. 
The  carrier's  duties  in  these  respects  are  found  chiefly  asserted  in  the 
instance  of  railways.     lb. 

3  7  Met.  (Mass.)  596;  120  Fed.  (U.  S.)  215;  116  Fed.  907  ;  §  639. 


CAERIERS   OF  PASSENGERS  365 

misconduct;  and,  moreover,  this  is  a  license  rcA^ocable  as 
to  any  and  all  persons  who  have  no  legitimate  business 
there,  growing  out  of  the  operation  of  the  road.  A  person 
thus  present  must,  upon  request  made  by  the  company's  agent 
in  charge  of  the  depot,  explain  satisfactorily  his  purpose  in 
remaining,  or  else  leave  the  premises  at  once,  and  a  rule 
forbidding  persons  to  lie  down  or  sleep  there  is  not  unreason- 
able.^ A  passenger  carrier  is  not  bound  to  receive  his  patrons 
into  the  depot  unreasonably  long  before  the  journey  is  to 
commence,  nor  to  permit  even  these  to  stay  without  first  pro- 
curing the  requisite  tickets,  if  the  means  of  procuring  them 
be  at  hand.2  Persons  unworthy  of  acceptance  as  passengers, 
and  all  riotous,  turbulent,  and  disorderly  characters,  ought  to 
be  kept  out  of  such  premises  altogether.^ 

547.  The  passenger  carrier  is  moreover  bound  to  have  all 
means  and  appliances  highly  suitable  to  the  transportation. 
Seaworthiness  or  roadwortliiness  is  here  implied,  as  it  would 
appear,  to  the  extent  of  providing  vehicles  of  suitable  kind 
and  condition,  with  all  the  skill,  diligence,  and  foresight  con- 
sistent with  the  nature  and  extent  of  the  business.^  Similar 
considerations  apply  to  the  other  means  connected  with  con-, 
veyance,  as,  for  instance,  to  the  horses  and  harness  employed 
for  travelling  by  hack  or  stage-coach ;  ^  or  to  the  road-beds, 

1  Barker  v.  Midland  R.,  18  C.  B.  46;  Harris  v.  Stevens,  31  Vt.  79; 
Commonwealth  i\  Power,  7  Met.  (Mass.)  GOl. 

'^  lb.     And  see  12  Met.  (Mass.)  482. 

3  See  7  Met.  (:\Iass.)  596,  per  Sliaw,  C.  J.;  Hall  v.  Power,  12  Met. 
482.  But  caution  must  be  used  against  accepting  one  as  a  passenger  and 
then  treating  him  as  a  trespasser.  The  station  and  means  of  ingress 
should  be  reasonably  guarded  against  undue  crowds  and  vicious  and 
annoying  persons  ;  but  an  extra  police,  against  unexpected  dangers  and 
annoyances,  cannot  be  insisted  on.  See  77  Ala.  591;  6  L.  R.  Ir.  199; 
115  Ga.  886  (tramps  with  loaded  pistols).  As  to  acconnnodations  for  a 
licensee  who  comes  to  meet  one  arriving  or  aid  one  who  departs,  see 
65  S.  C.  299 

M  640;  L.  R.  2  Q.  B.  412;  L.  R.  4  Q  B.  379;  L.  R.  8  Ex.  1-37,  146  ; 
Hyman  n.  Xye,  6  Q.  B.  D.  685. 

5  1  C.  &  P.  414;  2  Camp.  79;  Stokes  v.  Saltonstall,  13  Pet.  (U.  S.) 
181;  4  Gill  (Md),  406;  9  Met.  (Mass.)  1;  11  Gratt.    (Va.)  697;  Fair- 


366  THE  LAW  OF  BAILMENTS 

switches,  tracks,  and  other  equipments  of  a  modern  railway ;  ^ 
or  to  the  rigging,  small  boats,  smoke-stacks,  and  other  usual 
articles  and  apparatus  found  upon  steamboats  or  other  vessels 
which  carry  passengers ;  or  to  the  engines,  fuel,  water,  and 
machinery  for  steam  locomotion.^  Since  there  is  no  absolute 
wiirranty  on  his  part  against  defects,  the  carrier  of  passengers 
cannot  be  blamed  for  an  injury  caused,  without  his  actual 
fault,  as  by  the  breaking  of  an  axle,  a  switch,  or  a  rail,  through 
some  latent  defect.^ 

548.  But  the  existence  of  a  latent  defect  presupposes  that 
the  carrier  has  faithfully  performed  his  duty  of  inspection.* 
Official  inspectors  are  provided  for  vessels,  upon  whose  cer- 
tificate the  carrier  ought  to  be  allowed  to  place  some  reliance, 
irrespective  of  examination  by  his  own  agents.  In  railway 
travelling  an  intermediate  inspection  of  the  cars  is  often 
made  at  way-stations ;  but  such  examination  is  necessarily 
hasty,  if  the  train  is  to  proceed  on  due  time,  and  in  justice  it 
can  hardly  be  a  minute  one ;  ^  other  more  general  modes  of 

child  V.  California  Stage  Co.,  13  Cal.  599.  And  see  Siinson  r.  London 
Omnibus  Co.,  L.  R.  8  C.  P.  390  (kicking  horse  not  properly  secured). 

1  1  Moore  P.  C.  N.  s.  101 ;  Readhead  r.  Midland  R.,  L.  R.  2  Q.  B.  412; 
L.  R.  4  Q.  B.  379  ;  Taylor  v.  Grand  Trunk  R.,  48  N.  H.  304;  McElroy  v. 
Nashua  &  Lowell  R.,  4  Cush.  (Mass.)  400. 

2  Simmons  v.  New  Bedford  Steamboat  Co.,  97  Mass.  361;  48  N.  Y.  209; 
Carroll  v.  Staten  Island  R.,  58  N.  Y.  126. 

3  Readhead  v.  Midland  R.,  L.  R.  2  Q.  B.  412;  L.  R.  4  Q.  B.  379;  In- 
galls  V.  Bills,  9  Met.  (Mass.)  1 ;  McPadden  v.  New  York  Central  R.,  44 
N.  Y.  478.  Cf.  26  N.  Y.  102  ;  3  Kern.  (N.  Y.)  9.  See  also  Ladd  r. 
New  Bedford  R.,  119  Mass.  412  (a  broken  switch);  Taylor  v.  Grand 
Trunk  R.,  48  N.  H.  304  (a  broken  railj ;  Pittsburgh  R.  v.  Williams, 
74  Tnd.  462. 

The  passenger  carrier  is  not  liable  for  injury  caused  by  some  stranger, 
without  fault  on  his  own  part,  34  N.  Y.  9.  Nor,  of  course,  where  the 
immediate  cause  was  act  of  God,  etc.  McPadden  v.  New  York  Central 
R.,  44  N.  Y.  278;  Frink  v.  Potter,  17  III.  406;  EUet  v.  St.  Louis  R.,  76 
Mo.  518  Otherwise,  where  the  carrier  fidled  in  his  standard  of  duty,  and 
thus  was  the  immediate  cause  of  loss.    76  Mo.  518;  107  Ind.  442. 

4  See  §  641. 

5  See  Ivichardson  v.  Great  Eastern  R,  1  C.  P.  D.  342,  reversing  s.  c. 
L.  R.  10  C   P.  486. 


CAERIERS  OF  PASSENGERS  367 

careful  inspection,  however,  as  to  tracks,  bridges,  road-beds, 
and  rolling  stock  should  be  scrupulously  observed.^ 

549.  As  to  the  carrier's  duty  of  adopting  ne\7  inventions  and 
improvements,  every  new  and  possible  preventive  against  acci- 
dent need  not  be  taken.^  But  for  using  defective  carriages 
and  appliances  the  passenger  carrier  is  held  responsible,  irre- 
spective of  their  manufacture  or  ownership ;  and,  as  a  rule, 
he  must  discard  whatever  is  insecure  or  ill-adapted  to  the 
times,  and,  so  far  as  tlie  general  duty  of  extreme  care  on  his 
part  requires,  keep  pace  with  science  and  modern  improve- 
ments.^ Nor  can  the  want  of  pecuniary  means  justify  the 
carrier's  negligence  in  tliis  respect ;  for  when  he  cannot  afford 
to  transport  passengers  after  the  standard  the  law  demands 
for  their  safety,  he  should  rather  cease  transporting  them 
altogether.* 

550.  Suitable  provision,  too,  should  be  made  for  the  safety 
and  comfort  of  the  passengers  in  course  of  their  trans])ortation. 
ISIany  of  the  considerations  which  were  adduced  with  respect 
to  the  conveyance  of  goods  will  here  apply .^  That  the  pas- 
senger should  be  provided  with  a  place  is  a  rule  dul}^  enforced, 
as  we  have  shown,  though  with  more  especial  reference  to 
those  who  carry  a  long  distance.^  The  carrier  is  not  freed 
from  responsibility  for  exercising  due  care  towards  one  who 
occupies  an  unusual  but  not  ordinaril}^  an  unsafe  place ;  "^ 
while,  as  to  unsafe  places,  the  carrier  should  not  knowingly 
permit  the  passenger  to  ride  there  at  all.^  In  loading  the  car, 
vessel,  or  other  vehicle,  the  passenger  carrier  must  dispose 

^  Louisville  R.  v.  Snider,  117  Ind.  4.3.5. 

2  Le  Barron  v.  East  Boston  Ferry  Co.,  11  Allen  (Mass.),  312  (ferry 
"drop");  Meier  v.  Penn.  R.,  64  Penn.  St.  225. 

3  lb.;  Hegeman  v.  Western  R.,  3  Kern.  (N.  Y.)  9;  56  Ind.  511,-  27 
Fed.  (U.  S.)  724. 

*  See  Taylor  v.  Grand  Trunk  R.,  48  N.  H.  304 ;  181  Mass.  387. 
6  Ante,  320. 

6  Ante,  528. 

'  Keith  V.  Pinkham,  43  Me.  501. 

*  The  passenger's  own  carelessness  might  defeat  his  action  against  the 
carrier,  as  will  presently  be  seen.     See  §  642. 


368  THE  LAW  OF  BAILMENTS 

his  passengers  so  as  to  promote  their  reasonable  comfort  and 
safety ;  and  under  no  circumstances  is  he  permitted  to  over- 
load either  with  passengers  or  their  baggage,  for  this  invites 
danger.^  Where  a  long  continuous  transportation  is  by  land, 
accommodation  for  regular  meals  and  refreshment  should  be 
provided  the  passengers.^  In  water  transportation,  where  the 
means  of  stopping  are  not  convenient,  passengers  ought,  on 
any  transit  of  length,  to  have  the  means  of  procuring  meals 
on  board."^  Accommodations  for  sleeping,  too,  should,  in  this 
latter  case,  be  provided ;  and  one  who  travels  by  night  on  a 
steamer  without  paying  specially  for  a  stateroom  may  properly 
expect  a  berth.* 

551.  Order  should  be  maintained  on  board  with  the  utmost 
vigilance  and  care,  and  the  passengers  should  be  guarded 
against  such  violence,  from  whatsoever  source  arising,  as  might 
reasonably  be  anticipated  or  expected  in  view  of  the  number 
and  character  of  the  persons  on  board  and  all  the  other  at- 
tendant circumstances  of  the  transportation.^  Disorderly 
scuflles,  scandalous  and  immoral  conduct,  fights,  brawls,  per- 
sonal insult  and  annoyance,  and  all  wanton  disregard  of  rea- 
sonable rules  of  transportation  which  are  designed  to  promote 
the  general  comfort  and  security,  must  be  firmly  repressed  by 
the  carrier  and  his  servants,  who  should  not  be  wanting  in 

'  §  643;  2  Esp.  533;  Favish  v.  Reigle,  11  Gratt.  (Va.)  697;  Derwort 
V.  Loomer,  21  Conn.  246;  161  111.  190;  149  N.  Y.  336.  Statutes  which 
specially  regulate  and  limit  the  number  of  passengers  to  he  taken  on 
board  a  vessel  cannot  be  disregarded  with  impunity  ;  U.  S.  Rev.  Sts. 
§§  4252-4289.  Local  custom  may  affect  the  rule  somewhat,  as,  e.  g.,  in 
allowing  street  cars  to  become  crowded. 

"  Peniston  v.  Chicago  R.,  34  La.  An.  777. 

3  Ellis  V.  Narragansett  Steamship  Co.,  Ill  Mass.  146  ;  106  Mass.  180. 
But  these  accommodations  are  subject  to  reasonable  rules;  and,  as  for 
meals,  officers  of  the  vessel  may  have  their  own  table  apart  from  passen- 
gers. Ellis  V.  Narragansett  Steamship  Co.,  Ill  Mass.  146.  The  master 
of  a  vessel  has  no  right  to  put  a  passenger  on  short  allowance  by  w\ay  of 
some  petty  discipline.     Abb.  Adm.  (U.  S.)  242. 

4  3  Sawyer  (U.  S.),  397. 

5  §  643;  6  Blatchf.  (U.  S.)  158;  s.  c.  34  Conn.  554;  Norwich  Trans. 
Co.  V.  Flint,  13  Wall.  (U.  S  )  3  (as  in  receiving  a  company  of  soldiers  on 
board  a  steamship).     Cf.  5  Rich.  (S.  C.)  17 ;  133  N.  C.  59. 


CARRIERS  OF  PASSENGERS  369 

great  vigilance  and  care  to  prevent  disturbance.^  And,  that 
the  carrier's  servants  need  not  be  over-timorous  in  enforcing 
the  rules  of  decency  and  good  order,  it  is  but  fair  to  hold  that 
a  person  who  is  so  far  intoxicated  that,  by  act  or  speech,  he 
is  becoming  decidedly  offensive  or  annoying  to  other  persons, 
may  be  expelled  from  the  car  or  vehicle,  even  before  he  has 
actually  assaulted  or  insulted  any  one ;  provided  this  be  done 
with  as  much  humanity  and  consideration  as  the  circum- 
stances permit.^  jNIisbehavior,  indeed,  or  insanity,  or  loath- 
some disease,  may  be  manifested  in  an  impersonal  manner,  so 
as  to  annoy,  discommode,  or  endanger  the  safety  of  other  pas- 
sengers, without  being  directed  against  a  particular  indi- 
vidual.^ But  in  general,  the  carrier's  liability  for  disorderly 
outbreaks  or  other  dangerous  exposure  of  an  unusual  kind 
depends  greatly  upon  his  efforts  and  his  means  of  anticipating 
and  guarding  against  the  consequences.* 

652.  If  the  carrier  -was  overpowered  by  a  crowd,  too  great 
and  coming  too  suddenly  for  the  usual  precautions  to  suffice 
against  them,  he  should  not  be  responsible  for  his  inability  to 
repress  disturbance  and  violence  among  them  ;  sin'ce  no  pas- 
senger carrier  is  bound  to  provide  a  police  force  against  un- 
expected emergencies.  But  a  lack  of  vigilance  in  admitting 
such  persons,  or  of  prudence  and  courage  in  dealing  with  them, 

1  New  Orleans  R  v.  Burke,  53  Miss.  200;  3  Sawyer  (U.  S.\  311;  22 
Fed.  (U.  S.)  413 ;  23  Fed.  637.  Where  the  conductor  does  his  full  duty, 
though  not  with  entire  success,  the  carrier  is  exculpated.     90  Md.  248. 

-  See  11  Allen  (Mass.),  304  (journey  upon  a  street  railway).  And  see 
Murphy  r.  Union  R.,  118  Mass.  228;  Railroad  v  Valleley,  32  Ohio  St. 
345  ;  87  Me.  387;  Putnam  v.  Broadway  R.,  55  N.  Y.  108.  Any  conductor 
may  disarm  and  confine  a  passenger  who  is  dangerous  while  in  delirium 
tremens.  22  Fed.  (U.  S.)  413.  Or  may  have  him  expelled  and  handed 
over  to  the  public  authorities.      Atchison  R.  v.  Webber,  33  Kan.  543. 

If  a  passenger  on  shipboard  proves  to  have  small-pox  or  other  infec- 
tious disease,  it  is  ri^ht  for  the  captain  to  isolate  him,  having  due  regard 
to  the  patient's  comfort  and  welfare.      10  Ben    (U.  S.)  512. 

2  §  643;  Pearson  v.  Duane,  4  Wall.  (U.  S.)  605.  One  regularly  received 
as  a  passenger  should  not  be  expelled  merely  for  previous  misbehavior. 
See  ante,  529. 

*  Felton  V.  Chicago  R.,  29  N.  W.  G18;  90  Md.  248. 

2-1 


370  THE  LAW  OF  BAILMENTS 

ought  not  to  be  manifested  on  his  part  to  the  detriment  and 
danger  of  other  passengers.  And  where  the  conductor  goes 
elsewliere,  shirking  his  duty  and  leaving  such  persons  to  riot 
and  annoy,  the  carrier  cannot  expect  to  stand  exonerated.^ 
Nor  is  a  carrier  justified  in  disregarding  dangers  against 
whicli  he  was  amply  warned,  and  in  faiUng  to  protect  his 
patrons  accordingly.  The  conductor  of  a  railway  train  or 
captain  of  a  steamboat  should  be  the  conservator  of  order  and 
good  morals  ;  and  the  appeal  of  an  aggrieved  passenger  for 
protection  against  the  violence  or  annoyance  of  others  on 
board  ought  not  to  go  unheeded.^ 

553.  Good  treatment  by  the  carrier's  own  servants  is  required 
by  the  law.  It  is  not  only  good  treatment  from  fellow-passen- 
gers and  from  strangers  coming  upon  the  car,  vessel,  or  vehicle 
that  each  passenger  is  entitled  to,  but  he  should  be  well  treated 
by  the  passenger  carrier  himself  and  all  whom  such  carrier  em- 
ploys in  and  about  the  vehicle  in  the  course  of  the  journey. 
If  the  general  doctrine  of  master  and  servant  may  be  said  to 
apply  here,  it  applies  with  a  very  strong  bias  against  the  mas- 
ter, even  where  the  servant's  acts  appear  to  be  aggressive, 
wanton,  malicious,  and,  so  to  speak,  such  as  one's  strict  con- 
tract of  service  or  agency  does  not  readily  iniply.^  Such  is 
the  general  construction  of  the  courts,  so  long  as  the  offensive 
words  and  acts  of  a  conductor,  brakeman,  porter,  steward, 
waiter,  or  other  such  servant  complained  of,  were  said  or  com- 
mitted in  the  usual  line  of  duty  ;  while,  for  instance,  scrutin- 
izing tickets  and  determining  the  right  to  travel,  excluding 

1  Pittsburg  R.  v.  Hinds,  53  Penn.  St.  512.  See  Weeks  v.  New  York 
Central  R.,  72  N.  Y.  50;  (Ga.)  7  Rep.  460. 

2  §  644 ;  New  Orleans  R.  i\  Burke,  53  Miss.  200 ;  Pittsburg  R.  v.  Pil- 
low, 70  Penn.  St.  510 ;  Putnam  i\  Broadway  R.,  55  N.  Y.  108.  Where  a 
passenger  is  in  danger  of  assault,  the  conductor  should  either  try  to  pro- 
tect him  where  he  is  or  have  him  go  where  he  will  be  secure.  88  N.  C. 
536.  As  to  the  carrier's  duty  in  carrying  "non-union"  workmen  and 
others  at  the  peril  of  having  the  train  mobbed,  see  Chicago  R.  v.  Pills- 
bury,  123  111.  9.  As  to  the  duty  of  utmost  care  in  running  one's  car 
through  a  mob,  see  25  R.  I.  202. 

8  §  644;  130  Mich.  453;  130  Ala.  334;  3  Cliff.  (U.  S.)  416;  Gasway  v. 
Atlanta  R.,  58  Ga.  216 ;  85  Mo.  App.  28. 


CARRIERS  OF  PASSENGERS  371 

offenders  and  trespassers,  and  enforcing,  or  professing  to  en- 
force, the  carrier's  rules  aboard  the  vehicle  ;  and  this,  whether 
the  transportation  of  passengers  be  by  land  or  water.^  But 
at  all  events,  for  an  injury  to  the  passenger  by  the  carrier's 
servant  under  circumstances  which  absolve  the  latter  from  all 
blame,  the  carrier  cannot  be  sued  in  damages.^  Nor  should 
the  passenger  by  his  own  misconduct  provoke  the  offence 
complained  of.^ 

554.  In  general,  the  carrier's  servants  ought  to  be  trust- 
worthy, capable,  and  skilled  in  the  performance  of  the  several 
duties  assigned  them.  Thus,  only  careful  drivers  of  reason- 
able skill  and  good  habits  should  be  employed  in  journeying 
by  stage-coach,  hack,  cab,  omnibus,  or  horse  railway.*  En- 
gineers, conductors,  switchmen,  brakemen,  motormen,  and  all 

1  Moore  v.  Metropolitan  R.,  L.  R.  8  Q.  B.  36  ;  L.  R.  7  C.  P.  415; 
L.  R.  8  C.  P.  148;  3  Cliff.  (U.  S.)  416  (transportation  by  water);  God- 
dard  V.  Grand  Trinik  R.,  57  Me.  202  ;  62  Me.  83  ;  MoKinley  v.  Chicago 
R  ,  44  Iowa,  314  ;  Sherley  v.  Billings,  8  Bush  (Ky.),  147  ;  4  Gray  (Mass.), 
465;  Passenger  R.  v.  Young,  21  Ohio  St.  518;  Bryant  v.  Rich,  106  Mass. 
180  faggressois  on  a  steamboat,  the  steward  and  table  waiters) ;  Jackson 
V.  Second  Avenue  R.,  47  N.  Y.  274;  120  iN".  Y.  117;  85  Mo.  App.  28; 
43  La.  An.  34 ;  86  Ga.  312. 

If  the  carrier  knowingly  retains  a  servant  who  is  guilty  of  misconduct 
towards  the  passenger,  all  the  more  clearly  does  he,  by  his  sanction,  make 
the  wrongful  act  his  own.     58  Ga.  216  ;  57  Me.  202. 

Y"et  in  some  extreme  instances  of  wanton  injury  by  the  carrier's  servant, 
the  usual  doctrine  of  agency  or  service  has  been  maintained,  that,  for 
wrongful  acts  committed  beyond  the  scope  of  employment,  the  servant  is 
as  much  a  stranger  to  the  carrier  not  contributing  to  the  wrong  as  any 
third  person.  Little  Miami  R.  v.  Wetmore,  19  Ohio  St.  110;  Isaacs  v. 
Third  Avenue  R.,  47  N.  Y.  122.  But,  even  thus,  on  ordinary  principle, 
the  master,  as  it  seems,  must  not  have  contributed  to  the  injury  by  his 
own  culpable  negligence  or  misconduct.     §  644. 

Words  of  provocation  alone  will  not  justify  such  servant's  assault 
upon  a  passenger;  but  otherwise  with  a  menace  of  violence  and  especially 
of  death.     142  U.  S.  18. 

2  New  Orleans  R.  r.  Jope,  142  U.  S.  18. 
a  42  Fed.  (U.  S.)  787. 

4  Stokes  V.  Saltonstall,  13  Pet.  (U,  S.)  181  ;  23  111.  357 ;  4  Greene 
(Iowa),  555;  Sawyer  v.  Dulany,  30  Tex.  479  ;  4  Gill  (Md.),  406;  Parish 
V.  Reigle,  11  Gratt.  697. 


372  THE   LAW   OF   BAILMENTS 

others  employed  in  railway  locomotion,  must  be  competent  for 
their  several  duties ;  on  board  a  vess-sl,  the  officers  and  crew 
must  each  understand  well  the  duties  of  his  post ;  and  all  re- 
sponsible employes  should  be  temperate  and  sound-minded 
while  on  duty.^  In  general  the  passenger  carrier  is  bound  by 
the  acts  of  his  servants  and  subordinates  in  the  course  of 
their  employment,  as  for  his  own,  and  must  answer  for  their 
negligent  or  unskilful  performance ;  and  this,  whether  the 
the  carrier  be  a  person  or  a  corporation.^ 

555.  There  are  certain  duties  to  be  observed  on  the  road  and 
in  the  course  of  active  carriage  which  no  carrier  who  performs 
with  a  just  sense  of  his  public  obligations  can  afford  to  neg- 
lect. These  vary,  of  course,  with  the  nature  of  the  journey 
and  the  means  of  transportation.^  The  rules  of  the  road  are 
quite  commonly  regulated  by  statute  ;  in  America,  each  party 
is  expected  to  bear  or  keep  to  the  right  in  meeting,  while  it  is 
known  to  be  the  reverse  in  England ;  and  one  who  drives 
must  look  out  not  to  run  down  foot  passengers  who  are  cross- 
ing the  highway.*  These  rules  yield  somewhat  to  circum- 
stances, and  come  in  aid  of  that  coolness  and  good  judgment 
which  for  safe  driving  are  always  indispensable.^ 

1  §  644. 

2  Tebbutt  V.  Bristol  R.,  L.  R.  6  Q.  B.  73;  1  Stark.  272;  Stockton  v. 
Frey,  4  Gill  (xMd.),  406. 

One  partner  in  .such  carriage  may  likewise,  on  the  usual  doctrine  of 
partnership,  be  held  liable  for  the  negligence  of  another.  ]\Iany  of  our 
earlier  cases  relate  to  stage  partnerships,  which  are  now  somewhat  obsolete. 

3  §  645.  See  as  to  coachmen,  etc.,  3  Bing.  321 ;  AVordsworth  v.  Willan, 
5  Esp.  273;  Farish  v.  Reigle,  11  Gratt.  697;  Laing  v.  Colder,  8  Penn.  St. 
479;  1  McLean  (U.  S.),  540;  Nashville  R.  v.  Messino,  1  Sneed  (Tenn.), 
220  ;  Stokes  v.  Saltonstall,  13  Pet.  (U.S.)  181. 

*  Keniiard  v.  Burton,  25  Me.  39. 

5  lb.  And  see  §  645;  Lovejoy  v.  Dolan,  10  Cush.  495.  To  leave  the 
horses  in  the  road  unfastened  and  unattended  is  carelessness  in  the  driver. 
66  Tex.  265. 

The  carriage  of  passengers  by  steam  or  electricity  involves  the  employ- 
ment of  various  special  precautions  against  accident.  On  a  railway  the 
tracks  must  be  kept  clear  and  in  safe  condition  ;  switches  must  be  in  good 
order  and  properly  adjusted  ;  a  system  of  signals  must  be  established, 
especially  at  intersecting  tracks,  which  the  engineer  and  those  in  charge 


CARRIERS  OF  PASSENGERS  373 

556.    The  powerful  agency  of  steam  in  transportation  calls  for 
the  employment  of  engineei'S  skilful  and  well  trained  in  its 

are  bound  to  regard;  the  progress  of  approaching  trains  must  be  watched, 
and  atiy  disarrangement  of  time-tables,  through  obstruction  or  otherwise, 
noted,  in  order  that  collision  may  be  avoided  ;  signals  of  danger  must  be 
prescribed  and  used  in  time  of  need;  the  whistle,  the  bell,  tlie  head- 
lights, the  brakes,  must  be  in  good  order  and  well  managed;  engineers, 
firemen,  and  brakemen,  as  well  as  the  conductor,  must  be  each  at  his 
post;  railway  crossings  must  be  watched,  and  their  gates  or  guards 
suitably  constructed ;  nor  must  animals  or  obstructions  be  run  over 
heedlessly,  nor  broken  tracks  or  dangerous  places  be  jumped,  nor  the 
train  be  recklessly  driven,  whereby  those  on  board  receive  injur3\  §  645; 
Buxton  ('.  North-Eastern  R.,  L.  R.  3  Q.  B.  549  ;  4  Cush.  (]\Iass.)  400;  Tyrrell 
V.  Eastern  R.,  Ill  Mass.  o4G;  Sullivan  v.  Philadelphia  R.,  30  Penn.  St,  234. 
In  these  and  various  other  kindred  respects  the  carrier  is  bound,  according 
to  custom  and  prevailing  modes  of  business,  to  exert  the  utmost  prac- 
ticable care,  diligence,  and  foresight;  and  it  is  the  same,  whether  the 
object  be  to  provide  against  the  negligence  and  misconduct  of  the  com- 
pany's servants,  or  the  negligence  and  misconduct  of  any  stranger. 
Simmons  r.  New  Bedford  Steamboat  Co.,  97  Mass.  368;  Pittsburg  R.  v. 
Hinds,  53  Penn.  St.  512  ;  Eaton  v.  Boston  &  Lowell  R.,  11  Allen,  500. 
Where  there  is  special  danger  the  passengers  should  be  duly  warned. 

I'assenger  carriers  by  water  must  observe  the  usual  rules  which  admi- 
ralty or  legislation  has  pronmlgated.  Thus,  in  order  to  lessen  the  dan- 
gers of  collision,  certain  rules  of  navigation  are  established,  which  cannot 
be  transgressed  without  rendering  the  offending  vessel  strictly  liable  for 
all  disastrous  consequences.  These  rules,  which  relate  chiefly  to  the 
use  of  lights  and  fog  signals  in  dark  and  foul  weather,  and  to  the  method 
of  steering  and  the  precautions  needful  for  observance  when  approaching 
other  vessels,  may  be  more  fully  studied  in  general  works  on  admiralty  and 
shipping.  §  646,  and  English  and  American  statutes  cited  ;  The  Galatea, 
92  U.  S  439.  There  is  a  law  of  the  road,  so  to  speak,  on  the  ocean  highway, 
which  sailing-vessels  and  steamers  must  observe  reciprocally  and  with  ref- 
erence to  others  of  their  own  denomination.  8  Wall.  (U.S.)  302  ;  The  City 
of  Brooklyn,  1  P.  D.  276;  23  Wall.  165;  The  Free  State,  91  U.  S.  200. 
Canal-boats,  and  ferries,  too,  and  boats  or  small  craft,  engaged  in  inland 
or  coasting  transportation  of  freight  or  passengers,  may  be  found  sub- 
jected to  wholesome  requirements  of  a  similar  character.  See  6  Cow. 
(N.  Y.)  698.  In  all  instances  of  public  carriage  by  water,  the  general  prin- 
ciples of  legal  responsibility  are  those  applicable  to  land  carriers,  with 
only  such  modifications  as  naturally  result  from  employing  a  different 
and  peculiar  means  of  transportation.  §  646.  And  as  to  the  collision  of 
vessels,  see  3  Wall.  (U.  S.)  15!);  The  Atlas,  93  U.  S.  302 ;  14  Wall.  (U.  S.) 
199;  The  Velasquez,  L.  R.  1  P.  C.  494. 


374  THE   LAW   OF   BAILMENTS 

use, —  a  class  of  men  whose  service  in  driving  our  modern 
railway  trains  demands,  in  other  respects,  quite  a  high,  order 
of  intelligence,  besides  steady  habits  and  a  courageous  dispo- 
sition. Steam  and  the  use  of  steam  machinery  for  propelhng 
vessels  invite  special  danger  to  passengers,  which  the  inspec- 
tion acts  of  Congress  aim  in  a  measure  to  avert.  Where, 
because  of  the  carrier's  remissness,  or  his  disregard  of  such 
legislation,  injury  occurs,  whether  it  be  through  the  use  of 
improper  machinery  and  boilers,  or  reckless  or  unskilful  man- 
agement, so  that  scalding  steam  escapes,  or  the  boiler  bursts, 
the  carrier  should  strictly  respond  ;  ^  and,  in  general,  carriers 
who  use  steam  should  use  the  utmost  care  and  diligence  to 
avert  personal  injury  from  this  cause.^  Precautions  needful 
for  the  more  important  methods  of  transit  are  frequently 
prescribed  by  statute,  and  must  be  followed  accordingly,  or  the 
carrier  will  be  culpably  negligent.  But,  as  it  has  been  well 
observed,  compHance  with  positive  statute  regulations  does 
not  exempt  the  carrier  from  responsibility  for  neglect  to  ob- 
serve all  other  reasonable  precautions.^ 

557.  "Without  unreasonable  deviation  or  delay,  the  passenger 
carrier  must  proceed  to  the  place  of  destination  by  the  agreed 
or  customary  route.  Hence,  in  the  place  and  time  of  starting, 
modern  railway  companies,  steamers,  and  other  leading  classes 
of  carriers  are  bound  by  their  published  schedules  and  time- 

1  Carroll  v.  Staten  Island  R.,  58  N.  Y.  126;  Steamboat  New  World  v. 
King,  16  How.  (U.  S.)  469. 

2  §  647;  U  How.  (U.  S.)  482,  486. 

3  Simmons  v.  New  Bedford  Steamboat  Co.,  97  Mass.  368,  per  Gray,  J. 
Thus,  the  inspection  of  a  boiler  and  machinery  of  a  passenger  steamer, 

and  the  certificate  of  the  inspector  that  they  fulfil  the  requirements  im- 
posed by  act  of  Congress,  do  not,  of  themselves,  impair  the  common-law 
right  of  action  by  persons  injured  through  the  carrier's  negligent  or 
unskilful  management.  Swarthout  v.  New  Jersey  Steamboat  Co.,  48 
N.  Y.  209.  Nor  does  it  sufficiently  exonerate  a  railway  carrier  from 
liability  for  injury  caused  at  a  railway  crossing,  that  a  sign  was  put  up 
and  the  bell  rung,  as  an  act  of  legislation  required.  2  Cush.  (Mass.) 
539 ;  5  Q.  B.  747  ;  13  111.  548;  44  Iowa,  236.  See  24  Ga.  75.  As  to  the 
rate  of  speed,  the  carrier  may  usually  fix  this  for  himself,  provided  that 
the  risks  of  the  travelling  public  be  not  unduly  increased.     106  111.  371. 


CARRIERS  OF  PASSENGERS  375 

tables ;  ^  these,  and  their  posters  and  advertisements  gener- 
ally, being  in  the  nature  of  a  public  offer  which  patrons  and 
passengers  are  understood  to  accept.^  There  may  likewise  be 
special  representations  of  this  character  to  bind  the  carrier  to 
an  individual  passenger  as  by  a  special  undertaking.^  The 
duty  applies  with  reference  both  to  going  over  the  whole 
route  within  the  prescribed  time,  and  making  intermediate 
stops  for  the  purpose  of  putting  off  or  taking  aboard  passen- 
gers at  specified  times  and  in  specified  way  places.*  Upon 
large  transporters  of  passengei-s,  like  railway  companies,  there 
appears,  in  fact,  to  rest  a  public  duty  of  giving  some  sort  of 
public  notice  of  the  running  times ;  which  duty  is  commensu- 
rate with  supplying  such  needful  information  that  travellers 
of  ordinary  intelligence  may,  by  reasonable  care  and  caution, 
conform  themselves  to  its  terms.^ 

558.  The  publication  of  time-tables  indicates,  ho-wever,  no 
more  than  a  reasonable  conformity  thereto  and  reasonable 
diligence,  subject  to  those  possible  casualties  and  mishaps 
against  which  ordinary  skill  and  prudence  on  the  carrier's 
part  are  unavailing.®  Nor  is  the  case  an  unusual  one 
where  delay  or  deviation  would  be  excusable  and  highly 
proper:  the  main  concern  being  to  transport  at  all  events 
with  sedulous  regard  to  life  and  limb ;  and  one  dis- 
arrangement,   excusable    of    itself,    involving    many    delays, 

1  §  648;  Hobbs  v.  London  R.,  L.  R.  10  Q.  B.  Ill;  5  E.  &  B.  860; 
Sears  v.  Eastern  R.,  14  Allen  (Mass.),  433;  Le  Blanche  v.  London  R.,  1 
C.  P.  D.  286. 

2  Heirn  v.  M'Caughan,  32  Miss.  17. 

^  Hobbs  V.  London  R.,  and  other  cases  supra. 

*  L.  R.  10  Q.  B.  Ill ;  32  Miss.  17  ;  Chicago  R.  v.  George,  19  111. 
510. 

5  See  6  Duer  (N.  Y),  523  ;  Barker  v.  New  York  Central  R.,  24  N.  Y. 
599;  8E.  L.  &  Eq.  362. 

«  §  649;  1  C.  P.  D.  286;  Gordon  v.  Manchester  R.,  52  N.  H.  97; 
McClary  v.  Sioux  City  R.,  3  Neb.  44 ;  Savannah  R.  v.  Bon  and,  58  Ga. 
180.  In  the  matter  of  running  precisely  on  time,  courts  incline  to  be 
lenient  to  the  carrier,  unless  disaster  appears  plainly  due  to  his  fault 
in  this  respect.  44  Iowa,  284;  45  Iowa,  76;  State  v.  Philadelphia  R., 
47  Md.  76. 


376  THE  LAW  OF  BAILMENTS 

particularly  where  the  transportation,  as  by  railway,  is  upon 
fixed  tracks  and  attended  with  peculiar  dangers  and  diffi- 
culties.^ 

559.  The  passenger's  right  of  action  for  the  carrier's  failure 
to  start  or  run  the  conveyance  according  to  his  undertaking 
involves  the  recovery  of  such  damages  as  the  plaintiff  may 
have  sustained  in  consequence,  so  far  as  the  damage  be  the 
natural  and  justly  foreseen  consequences  of  the  carrier's 
breach  of  contract.^  Under  strong  circumstances,  a  pas- 
senger suffering  by  the  carrier's  unreasonable  detention  and 
violation  of  duty  may  choose  another  conveyance,  or  even, 
upon  notice  of  his  grievance,  when  a  railway  passenger,  en- 
gage a  special  train  to  carry  him  through ;  but  this  concession 
of  the  law  appears  to  be  upon  the  suggestion  that,  where  the 
carrier  fails  to  do  of  his  own  motion  what  he  was  bound  to 
do,  the  passenger  may  do  it  for  him  at  his  cost ;  ^  and  the 
passenger  as  a  rule  should  simply  go  by  the  best  available 
means  to  his  destination.  It  is  certainly  more  natural  and 
just  for  the  carrier,  when  a  contingency  arises  where  his  own 
vehicle  or  car  is  found  unable  to  perform  the  transit  with  due 
despatch  and  facility,  to  make  his  own  transfer  of  the  passen- 
gers, in  order  that  his  contract  be  performed  towards  them 
with  as  little  loss  to  himself  as  may  consist  with  justice  to 
their  interests ;  otherwise,  at  discretion,  to  proceed  himself  to 
the  journey's  end,  with  no  more  delay  or  deviation  than  he 

1  Change  of  time-tables  should  be  publicly  announced.  Sears  v.  East- 
ern 11.,  14  Allen  (Mass.),  433.  Usage  short  of  tliis,  though  pursued  by 
the  company  several  years,  cannot  justify.     lb.     See  ante,  535;  §  650. 

A  carrier's  undertaking  to  run  at  a  certain  time  is  not  usually  to  be 
inferred  from  tickets  or  the  language  of  a  ticket  agent,  but  rather  from 
time-tables  and  a  public  schedule.  19  C.  B.  n.  s.  310 ;  Pittsburgh  R.  v. 
Nuzum,  50  Ind.  141 ;  19  111.  510.  Nor  is  the  mere  statement,  by  the  car- 
rier or  his  servant,  of  the  usual  time  required  for  running  through,  an 
absolute  promise  to  carry  the  person  through  in  that  time.  Strohn  v. 
Detroit  R.,  23  AVis.  126. 

2  §  650;  5  E.  &  B.  860;  Hobbs  r.  London  R.,  L.  R.  10  Q.  B.  Ill; 
1  H.  &  N.  408;  Sears  v.  Eastern  R.,  14  Allen  (Mass.),  433;  Thompson 
V.  New  Orleans  R.,  50  INIiss.  315. 

3  See  Le  Blanche  v.  London  R.,  1  C.  P.  D.  286. 


CARRIERS  OF   PASSENGERS  377 

can  reasonably  help.^  A  collision  or  injury  occasioned  proxi- 
mately by  running  in  disregard  of  time-tables  renders  the 
carrier  liable  for  his  neoiigence.^ 

560.  As  concerns  changes  or  way-stations,  a  passenger  car- 
rier ought  to  have  changes  of  conveyance  and  the  names  of 
way-stations  so  made  known  to  passengers,  by  audible  an- 
nouncement or  otherwise,  and  make  such  reasonable  stops, 
that  way  passengers  may  change,  or  get  off  and  on,  according 
to  their  respective  rights  in  the  premises.^  But  the  carrier 
may  prescribe  and  enforce  reasonable  rules  to  protect  his 
interests  against  permitting  passengers  to  get  carelessly  on  or 
off,  or  to  stop  over.*  Nor  is  a  railway  carrier  bound  to  put 
oft"  or  take  on  passengers,  except  at  the  regular  stations.^ 

1  Williams  v.  Vanderbilt,  28  N.  Y.  217. 

2  Chicago  R.  v.  George,  19  111.  510.  The  obligations  we  have  con- 
sidered apply  to  the  carrier  who  contracts  on  behalf  of  himself  and 
connecting  carriers  to  send  the  passenger  through  to  a  given  destina- 
tion; and  for  damages  resulting  I'rora  the  non-performance  or  negligent 
performance  of  connecting  carriers  as  to  time,  place,  methods,  and  facili- 
ties, the  passenger  who  has  purchased  his  ticket  under  such  an  agreement 
may  sue  accordingly.  Ante,  51S-520;  17  N.  Y.  306;  4  Sneed  (Tenn.), 
203;  Van  Buskirk  r.  Roberts,  31  N.  Y.  661. 

It  is  tortious  for  a  passenger  carrier  to  carry  off  the  passenger's  bag- 
gage against  his  assent,  while  deliberately  refusing  to  carry  the  passenger 
himself,  according  to  contract.  Holmes  v.  Doane,  3  Gray  (Mass.),  328. 
As  for  duty  of  delivering  a  telegram  on  board,  see  94  Me.  379. 

3  §651;  Fuller  v.  Naugatuck  R.,  21  Conn.  558;  Penn.  Railroad  v. 
Kilgore,  32  Penn.  St.  292  ;  Southern  R.  v.  Kendrick,  40  Miss.  374;  Barker 
V.  New  York  Central  R.,  24  N.  Y.  599;  Thompson  v.  New  Orleans  R., 
50  Miss.  315;  Toledo  R.  v.  Baddeley,  54  111.  19;  80  Mo.  App.  152;  116 
Ga.  743.     See  next  chapter. 

*  See  Breen  r.  Texas  R.,  50  Tex.  43.  If  transfers  are  made,  the  car- 
rier undertaking  to  transport  through  should  pay  due  regard  to  supplying 
whatever  transfer  checks  or  tickets  may  be  needful.     70  Ga.  368. 

5  Pittsburgh  R.  v.  Nuzum,  50  Ind.  141. 

Passengers  for  more  distant  points  have  no  right  to  get  off  and  on 
the  vehicle  at  intermediate  stations ;  but  the  universal  and  convenient 
practice  of  permitting  this  as  to  coaches,  railways,  and  steamers  is  not 
illegal,  especially  if  the  stop  be  a  considerable  one;  and  the  carrier  ought 
to  have  his  facilities  suitable,  and  give  such  reasonable  notice  before 
starting  again,  that  the  passenger,  if  not  actually  delinquent,  may  resume 


378  THE  LAW  OF  BAILMENTS 

561.  II.  Now,  to  consider  the  liability  for  injuring  or  killing 
a  passenger.  Our  examination  of  the  caiiier's  duties  with 
reference  to  the  journey  indicates  that,  while  the  law  may 
not  be  perfectly  explicit,  the  standard  of  liability  is  set  very 
high,  —  not  so  high  as  that  of  the  common  carrier  of  goods, 
nor  yet  so  low  as  that  of  ordinary  bailees  of  goods  for  hire ; 
but  (if  resembling  any  bailee  of  chattels  at  all)  most  nearly 
analogous  to  that  of  a  bailee  for  his  sole  benefit,  who  must 
bestow  "great  diligence"  and  is  held  to  answer  for  what  is 
termed  "  slight  negligence."  ^  Carriers  of  passengers  do  not 
warrant  the  safety  of  passengers,  but  they  are  held  to  "  a  very 
high  "  or  the  "  highest "  or  the  *'  utmost "  degree  of  practi- 
cable care  under  the  circumstances  presented ;  and  to  this 
standard  a  philanthropic  age  must  adhere.^  On  the  whole, 
the  present  liability,  which  is  fixed  by  public  policy  from 
considerations  of  humanity  which  can  neither  be  wholly  estab- 
lished nor  wholly  restrained  by  special  contract,  may  be  in 
general  defined  as  follows:  The  carrier  of  passengers  must 
use  the  utmost  (or  perhaps  very  great  or  a  very  high  degree 
of)  forethought,  care,  and  diligence  towards  the  human  beings 
travelling  under  his  charge,  consistently  with  the  nature  and 
extent  of  the  business  he  pursues ;  and  for  the  injurious  con- 
sequences of  even  slight,  or,  as  some  cases  would  say,  the 
slightest,  neglect  on  the  part  of  himself  or  his  servants,  he 
is,  in  this  sense,  liable  ;  though  not  as  one  whose  vocation  im- 
ports a  warrant  of  absolute  safety,  or  of  indemnity  against 
those  disasters  which  the  exercise  of  due  forethought,  care, 
and  diligence  on  his  part  fails  to  avert."^     And  for  the  per- 

his  proper  place.     State  v.  Grand  Trunk  R.,  58  Me.  176  ;  Keokuk  Packet 
Co.  V.  True,  88  111.  6US. 

1  Ante,  52. 

2  See  ruling  objected  to  as  too  strong  in  141  Mass.  31,  and  76  Mo. 
282;  and  as  not  strong  enough  in  6  Q.  B.  D.  685.  "Strict  diligence"  is 
a  correct  statement.  93  Ala.  514 ;  cf.  130  Ala.  256.  Some  recent  cases 
say  "high"  and  others  "the  highest." 

^  This  statement,  with  its  limitations,  is  supported  by  most  of  the 
authorities  already  cited,  passim,  in  the  course  of  this  chapter.  See,  more 
particularly,  9  INIet.  (Mass.)  1  ;   Readhead  v.  Midland  R.,  L.  R.  2  Q.  B. 


CARRIERS  OF  PASSENGERS  379 

sonal  damage  which  ensues  to  the  passenger  from  wanton, 
malicious,  and  wrongful  misbehavior  on  the  part  of  the  car- 
rier, the  carrier  must  strictly  respond,  if  personally  at  fault ; 
and  generally,  too,  if  the  wrong  were  that  of  a  carrier's  ser- 
vant acting  in  the  course  and  scope  of  employment.^  In  all 
such  cases  the  question  is  one  of  proximate  and  direct  cause 
of  injury. 

662.  Where  act  of  God  or  of  the  public  enemy  proximately 
occasioned  the  injury  in  question,^  or  even  accident  and  mis- 
fortune in  the  lesser  sense  above  implied,  and  without  his 
own  fault,  the  carrier  is  certainly  absolved  from  liability. 
And  reason  and  common  justice  demonstrate,  too,  that  the 
carrier  is  exonerated  when  the  proximate  and  moving  cause 
of  the  disaster  was  the  act  of  the  injured  passenger  himself; 
since  the  rule  is  general  that  ordinary  care  is  here  required, 
«o  that  no  one  can  charge  another  in  damages  for  negligently 
injuring  him,  where  he  himself  failed  to  exercise  due  and 
reasonable  care  in  the  premises.^     But  due  and  reasonable 

412;  L.  R.  4  Q.  B.  379;  14  How.  (U.  S.)  468;  Steamboat  New  World  v. 
King,  16  How.  469  ;  4  Gill  (Md.),  406;  88  111.  608;  66  Tex.  265  ;  97  Mo. 
647;  32  W.  Va.  370;  Koehne  v.  N.  Y.  R.,  165  N.  Y.  603;  108  AVis.  319 
("  utmost  "  too  strong  a  word)  ;  Norfolk  R.  v.  Tanner,  100  Va.  379 ;  Clark 
V.  Eighth  Avenue  R.,  36  N.  Y.  135;  92  Va.  400. 

1  Ante,  5.53.  See  3  Cliff.  (U.  S.)  416;  58  Ga.  210  ;  4  McCr.  (U.  S.) 
371.  Evidence  that  one  deported  himself  as  conductor  or  brakeman, 
etc.,  may  justify  the  presumption  that  he  was  such.     (Ark.)  2  S.  W.  783. 

2  See  §  652;  37  Mo.  240  ;  McPadden  v.  New  York  Central  R.,  44  N.  Y. 
278;  Ellet  v.  St.  Louis  R.,  76  Mo.  518  (sudden  effect  of  a  freshet); 
(lad.)  8  N.  E.  18. 

8  Gee  V.  Metropolitan  R.,  L.  R.  8  Q.  B.  161;  7  Allen  (Mass.),  207; 
23  Penn.  St.  147;  Pittsburg  R.  v.  McClurg,  56  Penn.  St.  294;  Wheelock 
V.  Boston  &  Albany  R.,  105  Mass.  203;  Higgins  v.  Hannibal  R.,  36  Mo. 
418;  95  Ga.  736;  107  La.  370.  This  is  a  question  of  fact.  70  N.  H. 
607;  165  N.  Y.  641 ;  85  Minn.  357. 

The  application  of  this  doctrine  occasions  some  very  nice  distinctions 
concerning  contributory  negligence  in  our  later  cases.  1.  Thus,  one  who 
rides  upon  a  train,  or  in  a  car,  or  upon  the  part  of  a  vehicle,  where, 
as  a  passenger,  he  is  not  duly  in  place,  has  been  allowed  to  recover  for 
an  injury  there  sustained;  this,  however,  usually  upon  a  state  of  facts 
showing  some  or  all  of  such  circumstances  as,  that  it  was  a  place  which, 


380  THE   LAW   OF   BAILMENTS 

care  on  the  passenger's  part  need  not  be  expressly  and  posi- 
tively proved ;    for  the  law  will  infer  it  where  there  is  no 

per  se,  was  not  dangerous  or  unusual  for  passengers,  or  that  the  conductor 
or  other  person  in  charge  silently  or  expressly  permitted  the  person  to 
stay,  knowing  he  was  there,  or  that  the  action  of  the  passenger  only 
remotely  occasioned  the  injury,  or  that  the  carrier's  negligence  was  gross 
as  compared  with  his  own.  See  20  Minn.  125  ;  54  N.  Y.  2o0;  86  Penn, 
St.  139;  58  Me.  187;  33  Wis.  41;  8  Allen  (Mass.),  234.  But  where  a  , 
party  rides  upon  a  caboose  solely  used  for  other  purposes,  or  a  loco- 
motive, or  travels  in  some  other  plainly  dangerous  place,  not  intended 
for  passengers  at  all,  the  inclination  is  against  permitting  the  injured 
party  to  recover;  more  especially  if  he  is  a  trespasser  and  no  passenger; 
or  if  the  company's  proper  official  sanction  was  never  given  to  riding  in 
such  a  place;  or  if  the  injury  be  directly  traceable  to  exposing  one's  self 
to  the  peculiar  hazards  of  such  a  place.  57  X.  Y.  382;  8  Kan.  505;  84 
Me.  203.  But  cf.  99  Mo.  263.  And  see  77  Miss.  338  (improperly  riding 
on  top  of  car).  And  it  seems  fair,  at  least,  to  expect  from  the  jjassenger 
in  such  cases  an  exertion  of  care  and  diligence  commensurate  under  the 
circumstances  with  the  special  exposure.  Where  the  conductor  had  no 
knowledge  and  gave  no  consent,  it  cannot  be  contended  that  he  ought  to 
have  discovered  and  ordered  the  passenger  out.  79  Ky.  160 ;  84  Me. 
203.  Nor  is  a  station  agent  the  proper  person  to  give  such  authority  to 
ride,  apart  from  those  in  charge  of  the  train.  40  Ark.  298.  Carriers 
should,  however,  be  especially  careful  not  to  knowingly  permit  young 
children  to  ride  in  dangerous  places.  45  Conn.  284.  As  to  distinguishing 
between  paying  and  non-paying  passengers  in  this  respect,  see  post.  Gen- 
erally speaking,  a  passenger  who  might  ride  in  a  less  dangerous  place 
cannot  excuse  him.self  for  riding  where  it  is  far  more  dangerous,  on  the 
plea  that  he  had  no  seat.  99  Penn.  St.  492.  And  see  30  Fla.  1.  Riding 
upon  the  platform  of  a  car  in  a  fast-moving  train  is  carelessness.  84 
Me.  203.  But  as  to  a  street-car  it  might  be  different.  See  177  Mass. 
174;  174  N.Y.  522. 

2.  As  to  projecting  one's  head,  arm,  or  body  out  of  a  car  window,  or 
doing  other  imprudent  acts.  It  would  be  a  passenger's  own  fault  if 
he  kept  his  arm  thrust  clear  out  of  a  railway  car  window ;  for  there  is 
alwaj'S  danger  from  quickly  passing  trains  and  obstructions  of  various 
kinds  on  a  railway;  the  same  in  a  lesser  degree  might  be  apprehended  in 
any  iidand  conveyance  moving  too  rapidly  for  due  warning  of  approach- 
ing objects.  Injuries  thus  occasioned  are  due  to  the  passenger's  own 
negligence.  And  in  some  cases  the  slightest  voluntary  projection  of 
one's  arm,  head,  or  elbow  out  of  the  car  window  is  deemed  careless  so 
as  to  defeat  the  right  of  recovery.  39  Md.  329;  3  Allen  (Mass.),  18: 
7  Allen,  207;  56  Penn.  St.  294;  5  Bush  (Ky.),  1.  Arid  see  as  to  upper 
compartment  of  a  street-car  (Md.),  5  AtL  346.     But  in  others,  a  slight 


CARRIERS  OF  PASSENGERS  381 

appearance  of  fault,  either  positive  or  negative,  on  his  part, 
in  the  circumstances  under  which  the  injury  was  received  or 

projection  of  this  sort  is  not  taken  to  be  conclusive  against  the  passenger. 
For  the  duty  of  the  carrier  to  journey  sufficiently  clear  of  all  such  ob- 
stacles, and  construct  and  locate  his  tracks,  buildings,  bridges,  and  cars 
accordingly,  is  deemed  paramount ;  so  that  his  failure  in  these  respects 
would  be  negligence  so  proximate  or  so  gross  in  comparison  with  that  of 
the  passenger  as  not  to  defeat  tlie  latter's  right  to  recover.  See  52  Mo. 
253;  51  111.  333 ;  21  Penn.  St.  203.  But  cf.  5G  Penn.  St.  294.  And  more 
so  if  the  arm,  etc.,  does  not  protrude  but  merely  rests  on  the  sill.  35 
W.  Va.  389.  And  it  must,  of  course,  be  admitted,  that  an  obstruction  so 
close  as  to  crash  in  the  window,  or  break  the  car,  or  otherwise  damage 
one  sitting  with  his  elbow,  head,  and  person  inside,  imputes  no  careless- 
ness to  the  passenger,  but  rather  puts  the  onus  upon  the  carrier. 

3.  In  moving  about  the  vehicle,  passing  from  one  car  into  another, 
shutting  windows  or  doors,  or  trying  to  regulate  matters  for  his  own  com- 
fort, the  passenger  might,  by  his  carelessness,  exonerate  the  carrier  from 
liability.  L.  R.  i  C.  P.  739.  But  on  the  other  hand,  if  the  carrier's 
fastenings  be  insecure,  and  the  passenger's  act  not  an  unreasonable  one, 
the  blame  of  the  accident  should  fairly  rest  upon  the  carrier.  L.  R. 
8  Q.  B.  IGl.  And  see  Louisville  R.  v.  Kelly,  92  Ind.  371  (passenger 
jostled  carelessly  by  a  brakeman,  while  going  into  a  forward  car  to  find 
a  seat  as  the  conductor  had  directed). 

4.  Intoxication  of  the  passenger,  contributing  to  his  injur}',  may 
debar  him  from  recovering  against  the  carrier.  But  intoxication  which 
does  not  contribute  to  the  injury  will  not  prevent  him  from  maintaining 
his  action.     115  Mass.  239. 

5.  Carelessly  trying  to  get  off  or  on  a  moving  train  or  vehicle  is 
another  obstacle  to  recovery  by  the  injured  passenger.  66  Ga.  746;  67 
Ga.  306;  88  Ga.  436;  51  Mich.  236;  75  ^lo.  185,  475;  102  N.  Y.  280; 
165  IMass.  522  ;  87  IVIe.  466.  And  in  walking  on  a  station  platform, 
along  the  tracks  or  the  pier,  the  passenger  is  bound  to  ordinary  prudence. 
20  S.  C.  219.  Some  cases  rule  strictly  against  the  passenger;  while 
others  reasonably  assert  that  attemjiting  to  get  off  or  on  a  moving  train 
is  not  negligence  per  se.  See  119  Ind.  542.  Often  in  such  cases  the 
special  facts  may  be  material  to  the  issue  of  contributory  negligence. 
See  162  Mass.  326;  145  N.Y.  508;  153  111.  131;  147  U.  S.  571;  85  Ala. 
601). 

6.  Intentional  fraud,  in  travelling  on  a  ticket  which  the  passenger  had 
no  right  to  use,  is  held  to  debar  one  from  recovering  for  personal  injury 
sustained,  if  the  carrier  was  not  grossly  at  fault.  85  111.  80.  But  cf.  107 
Ind.  442.  As  to  furnishing  surgeons  of  ordinary  skill,  etc.,  where  injury 
occurs,  see  18  Fed.  (U.  S.)  221. 


382  THE   LAW   OF   BAILMENTS 

the  death  caused.^  And  it  would  appear  that,  if  the  carrier 
substantially  cause  the  disaster  by  his  own  fault,  a  slight 
aberration  or  confusion  of  mind  on  the  part  of  the  passenger 
at  the  instant  of  peril  ought  not  to  be  turned  to  the  advantage 
of  the  real  offender,  so  as  to  relieve  the  latter  of  responsibihty 
for  the  calamity.^ 

563.  As  for  causing  the  passenger's  death,  passenger  carriers 
seem  not  to  have  been,  at  the  common  law,  liable  to  an  action  ; 
for  the  theory  of  the  common  law  is,  that  the  right  to  sue  for 
a  personal  injury  is  personal  to  the  party  receiving  it,  and  that 
the  death  of  one  human  being  cannot  be  complained  of  as  an 
injury  to  another.  Hence,  the  personal  representative,  sur- 
viving husband  or  widow,  or  next  of  kin,  could  formerly 
maintain  no  such  action  ;  ^  nor,  even  though  the  local  statute 
permitted  actions  for  personal  injury  to  survive,  did  this  avail 
whei'e  the  death  was  instantaneous,  so  that  the  injured  party 
died  without  a  right  of  personal  action.^  But  modern  legis- 
lation in  England  and  America  corrects  this  hardship  by 
supplying  a  remedy  which  proves  salutary  both  for  reliev- 
ing the  distressed  family  and  keeping  the  carrier  to  the  due 

1  Mayo  V.  Boston  &  Maine  R.,  104  Mass.  137;  18  N.  Y.  422.  But  see 
Deyo  V.  New  York  Central  R.,  34  N.  Y.  9. 

^  §  652.  This  doctrine  is  applied  as  between  colliding  vessels.  The 
Carroll,  8  Wall.  (U.  S.)  302;  The  Falcon,  19  Wall.  75.  Nor  is  leaping 
from  a  stage  or  other  vehicle  at  the  critical  moment  of  danger  visited 
harshly  upon  a  passenger;  though  to  so  leap  or  get  on  or  off  the  vehicle 
merely  to  avoid  being  carried  beyond  his  stopping-place,  or  other  lesser 
reason,  might  not  be  excusable.  13  Pet.  (U.  S.)  181;  24  Ga.  356;  17 
111.  406;  ids  Wis.  319;  98  Mass.  194;  9  La.  An.  441.  Cf.  Railroad  Co. 
V.  Aspell,  23  Penn.  St.  147;  Nelson  v.  Atlantic  R.,  68  Mo.  593,  and  other 
cases  cited  post,  c.  TIL 

And  see,  as  to  injury  sustained  in  a  sleeping-car,  38  Ohio  St.  461. 

As  to  the  burden  of  proof  in  such  suits,  see  §  653 ;  L.  11.  3  C.  P.  216 ; 
L.  R.  8  C.  P.  390;  L  R.  4  Q.  B.  693;  64  Penn.  St.  225;  109  Mass.  398; 
76  Penn.  St.  510;  95  N.  Y.  562;  11  Gratt.  (Va.)  697;  19  Ohio  St.  110; 
70  Mo.  288. 

«  §  654;  1  Cush.  (Mass.)  475;  25  Conn.  265;  6  La.  An.  495;  14  B. 
Mon.  (Ky.)  204;  4  Allen  (Mass.).  56. 

*  9  Cush.  (Mass.)  108.  But  if  the  person  lives  after  the  accident, 
though  remaining  insensible,  the  action  survives.     11  Allen  (Mass.),  34. 


CAKRIERS   OF  PASSENGERS  383 

performance  of  his  duty.  The  inclination  of  these  statutes 
appears  to  be  to  set  apart  the  amount  of  damages  recoverable, 
as  a  fund  for  the  exclusive  benefit  of  those  entitled  in  case  of 
intestacy,  without  regard  to  the  will  of  the  deceased ;  ^  and 
the  amount  of  damages  recoverable  is  limited  usually  to  a 
sum  fixed,  but  otherwise  liberally  awarded  at  the  discretion 
of  the  jury .2 

564.  III.  'Whether  special  contract  and  special  circumstances 
may  diminish  the  passenger  carrier's  liability  for  the  personal 
safety  of  those  he  conveys.  The  point  is  somewhat  novel  in 
its  present  application ;  but,  upon  the  whole,  there  seems  a 
disinclination  in  the  courts,  particularly  those  of  America,  to 
permitting  the  carrier  to  regulate  his  momentous  responsibility 
for  hfe  and  limb  at  pleasure,  however  it  might  be  with  reduc- 
ing his  common-law  liability  for  general  freight  or  a  passen- 
ger's baggage.  Public  policy  is  less  flexible  and  yielding, 
where  it  comes  to  fixing  the  terms  of  human  conveyance,  than 
it  appeared  when  only  senseless  goods  and  chattels  were  con- 
cerned ;  nor  can  it  be  affirmed,  as  a  general  proposition,  that 
the  carriage  of  passengers  may,  by  the  most  explicit  under- 
standing between  the  public  transporter  and  his  customer,  be 
brought  down  even  so  slightly  as  to  leave  the  former  analogous, 
in  legal  responsibility,  to  an  ordinary  bailee  for  hire.  At  all 
events  a  carrier's  special  contract  of  immunity  from  the  con- 
sequences of  culpable  negligence  by  his  servants  must  be 
clearly  and  unequivocally  expressed  ;  as  well  as  brought  home 
properly  and  seasonably  to  the  passenger.^ 

1  Railroad  Co.  v.  Barron,  5  "Wall.  (U.  S.)  90;  Chicago  R.  v.  Morris, 
26  111.  400. 

2  5  Wall.  (U.  S.)  90 ;  Railway  Co.  v.  Whitton,  13  Wall.  270.  See 
South  Carolina  R.  v.  Nix,  68  Ga.  572.  See  Leggott  v.  Great  Northern  R., 
1  Q.  B.  D.  599.  As  to  granting  additional  damages,  cf.  further,  local 
statutes  on  this  subject ;  L.  II.  3  Q.  B.  555  (accord  and  satisfaction) ;  58 
Me.  176  (carrier  indicted);  107  Mass.  236;   192  U.  S.  440. 

3  §  655 ;  Northern  Pj.cific  R.  v.  Adams,  192  U.  S.  440  (contract  signed 
in  ink  by  passenger) ;  125  N.  Y.  422.  A  drover  who  is  injured  cannot  be 
concluded  by  a  contract  which  the  owner  of  animals  signs  after  the  acci- 
dent.    64  Wis.  447.     But  any  one  who  accepts  a  strictly  free  pass  is  bound 


384  THE  LAW  OF  BAILMENTS 

565.  But  at  all  events,  -where  nothing  special  is  stipulated 
to  the  contrary,  one  who  is  lawfully  carried,  even  though  he 
rides  free,  and  who  is  not  a  mere  trespasser,  is  entitled  to 

to  read  its  clearly  stated  conditions.  Boering  v.  Chesapeake  R.,  193  U.  S. 
442;  150  Mass.  365. 

This  issue  is  chiefly  raised  in  the  later  decisions  respecting  "  diovers' 
passes,"  where  persons  are  taken  free,  in  charge  of  the  animals  they  wish 
transported,  and  upon  railway  trains  which  are  naturally  better  adapted 
for  the  freight  than  their  living  owners.  In  England  it  is  decided,  but 
in  the  lower  tribunals  only,  that  any  person  who  travels  on  a  drovers  pass 
in  charge  of  animals  travels  at  his  own  risk  of  personal  safety;  this  on  the 
supposition  that  the  passenger  carrier  may,  by  special  contract,  divest 
himself  of  liability;  and  in  that  country  even  paying  passengers  have  been 
subjected  to  like  conditions  embodied  in  the  tickets  they  purchase. 
McCawley  v.  Furness  R.,  L.  R.  8  Q.  B.  57  ;  L.  R.  10  Q.  B.  212;  Haigh  v. 
Packet  Co.,  52  L.  J.  640  (a  steamship  passenger,  assuming  all  risks).  The 
same  rule  as  to  drovers  has  been  announced,  too,  in  this  country,  and  the 
inference  is,  that  any  passenger  who  travels  free  on  a  special  understand- 
ing, as  evinced  by  his  ticket  or  otherwise,  that  he  assumes  all  risks  of 
injury  to  his  person,  relieves  the  carrier  of  liability  accordingly;  and  thus, 
in  fact,  has  it  been  decided  in  New  Yoik  and  various  other  States. 
Bissell  V.  New  York  Central  R.,  25  N.  Y.  442  ;  49  N.  Y.  263  (facts  quite 
exceptional);  Kinney  v.  Central  R.,  32  N.J.  407;  34  N.  J.  L.  513;  24 
N.  Y.  181.  And  see  21  Wis.  SO  ;  51  Conn.  143;  Griswold  v.  N.  Y.  R.,  53 
Conn.  371;  Quimby  v.  Boston  &  Maine  R.,  150  Mass.  365;  147  Mass. 
255 ;  86  Me.  261 ;  157  Ind.  616  ;  1  Wash.  311. 

But  the  rule,  which  a  broader  appreciation  of  the  public  welfare  seems 
to  favor,  is  to  the  contrary ;  and  other  States  view  all  these  distinctions 
between  free  and  paying  passengers  as  unsound.  See  Indianapolis  R.  v. 
Horst,  93  U.  S.  291  ;  Railroad  Co.  v.  Lockwood,  17  Wall.  (U.  S.)  357; 
51  Penn.  St.  315;  Cleveland  R.  v.  Curran,  19  Ohio  St.  1 ;  17  Fed.  (U.  S.) 
671 ;  102  Fed.  (U.  S.)  17,  850;  Ohio  R.  v.  Nickless,  71  Ind.  271 ;  40  Ark. 
298;  14  W.  Va.  180.  These  cases  relate  to  "drovers'  passes."  As  to 
more  general  cases  of  gratuitous  transportation,  see  14  How.  (U.  S.)  468  ; 
16  How.  469;  Pennsylvania  R.  v.  Butler,  57  Penn.  St.  335;  Graham  v. 
Pacific  R.,  66  Mo.  536.  And  see  30  HI.  9  ;  39  Iowa,  246;  57  Penn.  St. 
335;  L.  R.  2  Q.  B.  442,  per  Cockburn,  C.  J.;  41  Ala.  486;  110  Ga.  665; 
80  N.  Y.  S.  941 ;  GuI|^R.  v.  IMcGown,  65  Tex.  640^  In  Northern  Pa- 
cific R.  r.  Adamsri9'5  U.  S-  440  (1903),  the  Sujireme  Court  of  the 
United  States  at  length  gives  its  weighty  preponderance  in  favor  of  per- 
mitting a  carrier  who  gives  a  free  pass  to  throw  the  whole  risk  upon  the 
passenger  by  special  contract.  But  see  Baltimore  &  Ohio  R.  v.  Voight, 
176  U.  S.  498. 


CARRIERS  OF  PASSENGERS  385 

recover  damages  if  injured  by  the  carrier's  negligence. ^  And 
an  ordinary  passenger,  who  pays  the  regular  fare  without 
deduction,  ought  not  to  be  denied  his  legal  rights  on  any  mere 
inference  that  he  has  waived  them ;  while  it  is  certain  that 
no  such  waiver  can  be  extorted  from  him  as  the  condition  of 
his  carriage.^  We  need  hardly  repeat,  however,  that  where 
one  rides,  without  the  carrier's  knowledge  and  assent,  in  un- 
usual and  unsafe  places,  or  travels  whether  by  abuse  of  his 
own  pass  or  fraudulently  on  another  ticket,  so  as  to  evade  fare 
and  not  be  in  the  just  sense  a  passenger,  his  right  of  action, 
or  at  least  his  recovery  of  damages  as  for  injury  by  the  carrier, 
is  likely  to  be  defeated.^ 

566.  IV.  To  consider  the  general  right  of  ejection.  In  pur- 
suance of  his  rights,  and  his  general  duty  as  well,  the  passen- 

1  §  657;  Packet  Co.  v.  Clough,  20  Wall.  (U.  S.)  528  ;  Wilton  v.  Middle- 
sex R.,  107  Mass.  108;  Rose  j>.  Des  Moines  Valley  R.,  39  Iowa,  246 ; 
Brennan  t'.  Fair  Haven  R.,  45  Conn.  284;  22  Barb.  (N.  Y.)  91;  Blair  v. 
Erie  R.,  66  N.  Y.  313;  Nashville  R.  v.  Messino,  1  Sneed  (Tenn.),  220; 
Exton  V.  Central  R.,  63  N.  J.  L.  356;  110  Fed.  (U.  S.)  670;  Russell  v. 
Pittsburgh  R.,  157  Ind.  305;  93  Mo.  App.  267;  41  Or.  151. 

That  which  purports  to  be  a  free  pass  may  be  nevertheless  given 
for  consideration  ;  in  which  respect  one  might  show  himself  not  es- 
topped by  the  special  terms  of  his  ticket.  Railway  Co.  v.  Stevens, 
95  U.  S.'  655. 

"^  See  Elliott  v.  Western  R.,  58  Ga.  454.  One  travelling  for  a  consid- 
erable distance  is  presumed  rightfully  on  board.  (Ind.)  8  N.  E.  18.  A 
drover  travelling  by  railway  on  a  free  pass  may  be  in  effect  a  passenger 
for  hire.  Ante,  524.  As  to  government  agents  or  postal  clerks,  cf.  95  N.  Y. 
562;  195  Penn.  St.  499.  As  to  express  messenger,  see  176  U.  S.  498  (spe- 
cial waiver  of  all  liability  for  injury);  96  Penn.  St.  256;  95  N.  Y.  562. 
Newsboys  permitted  to  go  upon  a  car  and  sell  newspapers  are  not  tres- 
passers ;  but  neither  are  they  passengers  and  ordinary  care  towards  such 
is  sufficient.  Padgitt  v.  Moll,  159  Mo.  143  (street  car).  See  108  Mass. 
7  ;  41  Cal.  71.  An  employe,  allowed  under  the  carrier's  rules  to  ride  free, 
has  the  rights  of  a  passenger.  177  Mass.  365  ;  105  Tenn.  460.  See  further 
64  Tex.  549;  118  Ga.  826^ 

^ Ante,  524;  77  Miss.  338,  Towards  trespassers  (especially  if  care- 
less), the  carrier  is  liable  only  for  gross,  wilful,  wanton,  or  reckless 
negligence.  Carrico  v.  West  Virginia  R.,  35  W.  Va.  3S9 ;  114  Fed. 
(U.  S.)  123. 

A  passenger  on  a  mixed  or  freight  train  assumes  the  special  risks  — 

25 


386  THE  LAW  or  BAILMENTS 

ger  carrier,  or  his  representative,  may  eject  from  the  car  or 
vehicle  persons  on  board  who  wrongfully  refuse  to  pay  their 
reasonable  fares,  or  who  present  void  tickets  and  insist  un- 
reasonably upon  having  them  accepted  for  carriage,  or  who 
misbehave  and  violate  wholesome  regulations  for  promoting 
the  general  comfort  and  security  of  those  on  board  ;  or  who 
are  mere  intruders,  having  no  right  on  board.^  But,  with 
respect  more  particularly  to  those  once  accepted  as  passengers, 
this  dangerous  discretion  must  be  prudently  exercised.  Where 
the  issue  relates  merely  to  one's  proper  fare  and  the  passenger 
is  not  violent  and  abusive,  the  conductor  should  allow  hira 
every  opportunity  to  pay  or  explain  before  resorting  to  harsh 
measures  ;  nor  at  any  time  should  the  carrier  fail  in  judgment 
and  forbearance  or  eject  for  his  own  revenge  and  to  gratify  an 
ill  temper ;  nor,  of  course,  should  he  eject  when  his  reason  is 

e.  g.  jerks,  etc.  —  by  such  trains.  25  Ky.  L.'38.  And  a  drover  travelling 
on  a  freight  train  is  entitled  to  such  care  only  as  is  consistent  with  run- 
ning such  trains.     95  Md.  637. 

1  §  658.  For  the  usual  circumstances  under  which  such  ejection  is 
proper,  see  ante,  531,  55L  And  see  Chicago  R.  v.  Flagg,  43  111.  364;  11 
Allen  (Mass.),  304;  50  Tex.  43.;  O'Brien  v.  Boston  &  Worcester  R.,  15 
Gray  (Mass.),  20.  One  who  is  properly  expelled  for  refusing  to  pay  fare 
does  not  regain  the  right  to  re-enter  by  tendering  it  or  buying  a  ticket 
merely  from  the  place  of  ejectment.  See  32  N.  J.  309;  175  N.  Y.  281 ; 
15  N.  Y.  455 ;  132  Mass.  116.     Cf .  39  Ohio  St.  444. 

But  the  better  authorities  among  the  latest  are  averse  to  needless  eject- 
ment for  mere  non-payment  of  fare  ;  and  hold  that  where  a  fractious 
passenger  by  rail  tenders  his  fare  before  actual  ejectment,  changing  his 
mind  at  the  last  moment,  or  where  some  one  else  offers  to  pay  the  fare  for 
him,  the  conductor  has  no  right  to  refuse  it  and  to  eject  him.  80  N.  Y. 
236;  68  Ga.  572;  18  Fed.  (U.  S.)  155;  62  Tex.  442j_Pease  v.  Delaware 
R.,  101  N.  Y.  367;  174  Mo.  524.  This  at  all  events,  where  the  train  was 
stopped  at  a  regular  station,  and  others  were  not  inconvenienced  by  some 
stoppage  for  the  sole  purpose  of  ejectment,  and  the  right  to  remain  was 
not  forfeited  by  such  passenger's  own  wilful  abuse  and  misbehavior.  Cf. 
15  Fed.  (U.  S.)  57  (where  the  passenger  wrangled,  and  so  misbehaved  as 
to  invite  ejection)  ;  88  Ga.  529  ;  104  N.  C.  312.  Some  local  statutes  for- 
bid ejectment  on  a  railway  except  at  regular  stations.  29  Vt.  160;  43  111. 
420 ;  45  Ark.  524.  Cf.  34  Ind.  532.  Nor  has  the  carrier  the  right  to 
accept  one's  fare  or  take  up  his  ticket  and  then  eject  him  for  non-payment 
of  proper  fare ;  nor  even  to  eject  the  passenger,  and  then  return  the  money 


CARRIERS  OF  PASSENGERS  387 

not  a  good  one.^  And,  in  general,  the  carrier  or  his  represen- 
tative should  not  needlessly  abuse  the  person  ejected,  in  lan- 
guage or  acts  ;  nor  subject  him  to  wanton  indignity  ;  nor  use 
more  force  than  is  needful ;  nor  eject  him  at  such  a  place  or 
in  such  a  manner  as  carelessly  or  wantonly  to  endanger  him 
in  life  or  limb ;  ^  nor,  of  course,  eject  without  good  cause. 
Repeated  misbehavior  after  a  warning  strengthens  the  right 
to  eject  for  such  a  cause.^ 


or  ticket  to  him  ;  but  he  should  return  the  money  or  ticket  before  eject- 
ing at  all.  55  Cal.  570.  A  passenger  may  be  expelled  for  refusing  to  pay 
the  fare  of  a  minor  under  his  charge,  though  paying  his  own  fare.  62  JMd. 
300.  Even  though  passage  might  be  refused  in  an  improper  place,  un- 
necessary violence  is  not  excusable.  72  Ga.  292.  But  allowance  should 
be  made  for  any  one  who  appeals  a  bona  fide  passenger  with  his  proper 
fare,  whose  age,  ignorance,  disability,  or  other  good  cause  prevents  a 
prompt  comi:)liance  with  tlie  conductor's  demand,  or  where  one  without 
his  ticket  has  reasonable  explanation  to  make.  14  Lea  (Tenn.),  128  ;  91 
N.  C.  506  ;  Ind.  (190.'0  ;  189  111.  384. 

^  §  658.  That  the  carrier  may  with  far  more  freedom  expel  those  who 
endanger  the  safety  and  comfort  of  other  passengers  by  outrageous  con- 
duct, intoxication,  infectious  disease,  etc.,  see  ante,  553,  554  ;  Cobb  v.  Ele- 
vated R.,  179  jMass.  212.  Here  expulsion  is  for  the  general  benefit  of 
those  who  are  travelling,  while  as  to  mere  non-payment  only  the  carrier 
and  the  particular  passenger  are  interested. 

2  Coleman  v.  New  York  R.,  106  Mass.  160  ;  State  v.  Ross,  2  Dutch. 
224  ;  Higgins  r.  Watervliet  Turnpike  Co.,  46  N.  Y.  23.  Ejection  while 
a  i-ailway  train  is  in  motion  would  be  dangerous  ;  but  as  to  a  horse-rail- 
road, such  ejection  appears  not  so  positively  dangerous.  Cf.  23  N.  Y.  343-; 
118  Mass.  228;  183  Mass.  271  ;  07  Ga.  306.  But  as  to  proximate  cause 
of  injury,  see  32  Ohio  St.  345. 

3  Robinson  v.  Rockland  R.,  87  Me.  387. 

Where  the  conductor  of  a  tiain,  captain  of  a  steamboat,  or  other  rep- 
resentative of  th?*'Passeiiger  carrier,  who  is  charged  with  enforcing  the 
rules  and  resorting  to  this  disngreeable  extremity,  abuses  his  authority  in 
any  such  respect,  the  carrier  himself  may  commonly  be  held  answerable 
in  damages  to  the  person  aggrieved;  while  the  servant  is  liable  to  criminal 
prosecution  besides.  §  658.  and  cases  cited.  A  wrongful  ejectment  may 
be  resisted  and  wrongful  passage-money  refused ;  and  the  fact  that  the 
passenger  aggrieved  does  resist  will  not  prevent  him  from  recoveiing 
damages  against  the  carrier.  A  needless  and  humiliating  arrest,  with 
removal  from  the  car,  and  false  imprisonment  besides,  renders  a  carrier 
still  more  strongly  liable.     And  wrongful  expulsion  is  good  foundation  for 


388  THE  LAW  OF  BAILMENTS 

a  suit  against  the  carrier,  even  though  the  passenger  leaves  as  ordered 
without  making  physical  resistance  or  compelling  violence.  §  658,  and 
cases  cited.  Arrest  of  a  passenger  is  by  local  statute  permitted  in  certain 
cases,  besides  ejectment.  A  brakeman  or  other  employ^  of  the  carrier 
may  be  shown  to  be  the  usual  agent  for  ejecting,  so  as  to  bind  the  carrier. 
48  Ark.  177. 


CHAPTER  III. 

TERMINATION  OF  THE  JOURNEY. 

567.  One's  journey  may  prematurely  end,  as  we  have  already 
seen,  by  his  ejection  or  expulsion  from  the  car,  vessel,  or  other 
vehicle  ;  ^  or  perhaps  in  some  personal  accident  or  misfortune  ;  ^ 
in  either  of  which  events  the  law  and  facts  must  decide 
whether  carrier  or  passenger  should  bear  the  loss. 

567  a.  But  in  the  natural  course,  the  journey  properly  ter- 
minates, so  that  the  carrier  shall  discharge  himself  of  respon- 
sibility, when  the  place  is  reached  to  which  he  undertook  to 
make  conveyance,  and  the  passenger  is  properly  landed  there, 
unless,  indeed,  the  passenger  has  chosen  to  stop  short  of  such 
destination,  and  leave  the  vehicle.  Custom  and  mutual  agree- 
ment must  determine  what  this  place  shall  be :  whether,  as  in 
the  instance  of  a  hackney  coachman,  at  the  passenger's  own 
door;  or,  again,  where  the  carriage  is  by  omnibus  or  street-car, 
at  such  place  on  the  route  as  the  passenger  shall  elect ;  or, 
once  more,  to  take  the  case  by  far  the  most  familiar  of  all,  at 
the  station,  depot,  or  landing-place  where  the  rail-car,  steam- 
boat, or  other  vehicle  makes  its  usual  stop  to  leave  passengers.^ 
The  undertaking  may  have  been  to  leave  the  passenger  at  the 
end  of  the  carrier's  route  ;  or  at  some  way-place  ;  or  perhaps  to 
send  him  through  to  some  point  by  means  of  carriers  perform- 
ing in  succession ;  or,  once  more,  so  as  to  leave  him  to  his  own 
choice.  But,  whatever  the  undertaking,  express  or  implied, 
to  this  in  its  just  intent,  the  carrier  and  his  passenger  remain 
mutually  bound ;  subject,  of  course,  to  mutual  waiver  and  a 
right  for  cause  to  consider  the  obligation  on  either  side  as 
sooner  rescinded.^     And   the  common  understanding  is  that 

1  Ante,  566.  2  Ante,  562-565.  3  §§  659,  660. 

*  §  660.  See  1  Esp.  27.  A  carrier  need  not  stop  except  at  regular 
stopping-places,  uuless  expressly  contracting  to  do  so  or  running  a  busi- 


390  THE   LAW  OF   BAILMENTS 

the  passenger  shall  be  carried  through,  not  only  safely  and 
securely,  as  to  life  and  limb  (under  the  conditions  already 
dilated  upon),  but  without  unreasonable  delay  and  according 
to  the  usual  or  the  prescribed  means.^  The  passenger  rela- 
tion usually  ceases  when  the  passenger  has  left  the  carriage ;  ^ 
but  circumstances  connected  with  the  station  or  landing- 
place  may  extend  it  somewhat  farther  as  to  certain  kinds  of 
carriage.^ 

568.  A  fair  time  and  opportunity  to  alight  should  be  given 
at  the  proper  station  or  landing-place  for  passengers,  and  to 
this  end  the  vehicle  should  come  to  a  full  stop  and  so  remain 
wliile  the  landing  goes  on.  To  manage  such  landing  so  that 
passengers  cannot  safely  get  on  or  off  is  negligence.*  Reason- 
able arrangements,  too,  should  be  made  to  enable  passengers 
to  leave  the  carrier's  premises  in  safety.^  In  short,  for  the  car- 
rier's failure  to  use  very  great  precaution  and  care  at  the  point 
of  disembarking,  he  may  be  regarded  answerable,  either  on  the 
general  ground  of  his  negligence,  or  because  his  contract  to 
carry  through  safely  has  not  yet  been  discliarged.^ 

ness  of  suitable  character.  Plott  v.  Chicago  R.,  63  Wis.  511.  Aliter, 
where  reasonable  rules  or  the  contract  with  the  passenger  obliges  the 
carrier  to  do  so.     66  Tex.  619. 

1  §  660.  A  railway  ought  commonly  to  discharge  at  the  station  and 
not  at  a  point  beyond  or  short  of  it.,  36  Miss.  660;  40  Miss.  374.  And 
see  17  Mo.  290  (steamboat  carrier). 

2  Creamer  v.  West  End  R.,  156  Mass.  320;  48  Minn.  378. 
8  See  146  Mass.  241. 

*  §  661 ;  79  Miss.  431 ;  80  Mo.  App.  152.  Carrier  not  liable  in  dam- 
ages for  carrying  a  sick  and  drowsy  passenger  past  his  destination,  though 
the  conductor  promised  as  a  favor  to  wake  him  up  and  failed  to  do  so. 
61  Miss,  8;  71  Ga.  710;  90  Mich.  203.  Conductors,  with  their  more 
responsible  duties,  cannot  be  expected  to  charge  their  minds  with  con- 
cerns of  this  sort.     Ih.     See  57  Fed.  (U.  S.)  481  ;  111  Ga.  842. 

Calling  out  the  station  is  in  effect  an  invitation  to  alight,  and  the  pas- 
senger should  show  average  heed  for  himself.     51  Mich.  236. 

s  As  to  requirement  of  good  platforms  or  piers,  clear  tracks,  gangway- 
planks  for  vessels,  lights  at  night,  etc.,  see  32  Miss.  17;  L.  R.  5  C.  P.  437; 
20  Wall.  (U.  S.)  528;  49  Mich.  370;  L.  R.  7  H.  L.  213;  124  Penn.  St.  427; 
52  Miss.  202. 

6  L.  R.  5  C.  P.  437;  88  111.  608;  160  111.  636;  133  Ala.  518;  51  W. 
Va.  420;  179  Mass.  52. 


CARRIERS  OF  PASSENGERS  391 

569.  So,  too,  is  the  passenger  bound  to  use  the  arrangements 
thus  duly  provided  for  him,  and  be  ordinarily  careful  in  get- 
ting out  and  away  from  the  station  or  landing-place,  as  he 
cannot  hold  the  carrier  liable  for  an  injury  otherwise.  Thus, 
a  railway  passenger  is  not  justified  in  jumping  from  the  train 
while  it  is  in  motion,  even  tliough  the  carrier  was  negligent, 
whether  in  carrying  him  past  the  station  or  in  starting  before  he 
had  due  opportunity  to  land ;  ^  and  if  he  alight  knowingly  on  the 
opposite  side  of  the  track  instead  of  at  the  platform,  he 
risks  the  consequences ;  ^  for  a  departing  passenger  should  in 
general  exercise  oixiinary  prudence  both  in  landing  and  in 
leaving  the  station.^ 

570.  As  to  the  final  compensation  of  a  passenger  carrier,  it  is 
customary  on  long  routes,  as  part  of  our  modern  system,  not 
to  take  tickets  up  until  at  or  near  the  journey's  end ;  and 
where,  as  on  a  steamboat,  the  passenger  is  not  asked  to  produce 
his  ticket  at  all  until  the  vehicle  reaches  its  landing,  he  ought 
to  have  it  ready  to  surrender  before  he  passes  out.*  If  one 
cannot  produce  his  ticket,  as  they  are  thus  being  collected 
while  passengers  leave  the  vehicle,  he  has  no  right  to  keep 
others  waiting,  or  divert  the  attention  of  the  ticket -taker ;  but 
the  carrier  may  properly  make  him  step  aside  and  wait  long 
enough  for  a  reasonable  inquiry  to  be  made  into  the  circum- 
stances.^ If  the  passenger  cannot  then  justify  the  non- 
production  of  his  ticket,  the  amount  of  his  fare  may  be 
demanded  on  the  spot.^  Needless  violence  towards  the  pas- 
senger would,  however,  be  unjustifiable  on  the  usual  principles  ; 
and  whatever  the  statute  which  might  justify  calling  a  police- 
man and  handing  a  cheat  over  to  justice,  to  be  dealt  with  as  a 
criminal,  the  carrier  cannot  imprison  a  party  on  his  vehicle  for 

1  §  663;  68  Mo.  593;  Railroad  Co.  v.  Aspell,  23  Peun.  St.  147;  9  La. 
An.  441 ;  6  Gray  (Mass.),  G4;  Straus  v.  Kansas  City  R.,  75  Mo.  185. 

2  37  Penn.  St.  420.  See  also  L.  R.  9  Q.  B.  66;  L.  R.  10  Q.  B.  271 ; 
Siner  v.  Great  Western  R.,  L.  R.  3  Ex.  150;  L.  R.  4  Ex.  117. 

^  The  adjustment  of  blame  in  such  cases  is  often  difficult.     See  20  S. 
C.  219;  84  N.  Y.  241;  75  Mo.  475;  142  Mass.  251,  and  cases  cited. 
*  §  663.     Standish  v.  Xarragansett  Steamship  Co.,  Ill  Mass.  512. 
5  lb.  6  lb. 


392  THE   LAW   OF   BAILMENTS 

non-payment  of  his  fare,  nor  even  seize  his  articles  of  wearing 
apparel  or  personal  use  for  the  purpose  of  compelling  satisfac- 
tion. ^ 

1  Ramsden  v.  Boston  &  Albany  R.,  101  Mass.  117.  But  doubtless  the 
carrier  may  detain  baggage  left  in  his  own  custody  for  the  unpaid  fare 
lawfully  due  him  from  the  owner.     See  next  chapter. 

As  to  the  general  remedies  of  a  passenger  and  the  rule  of  damages,  see 
§  664. 


There  are  various  recent  decisions  regarding  the  carriage  by  passenger 
elevators  in  private  buildings.  Such  elevators  are  now  quite  commonly 
used  in  the  large  cities;  though  usually  without  the  payment  of  fares,  but 
rather  as  a  general  inducement  and  convenience  to  tenants  and  the  public. 
The  elevator  carrier  is  essentially  a  passenger  carrier,  according  to  various 
late  decisions.  Springer  v.  Ford,  1S9  111.  430;  197  III.  327,  334;  205  111. 
144;  155  Mo.  610;  107  La.  355.  But  not  necessarily  so  with  regard  to 
the  owner's  liability  for  bodily  injuries  occasioned  those  who  ride  in 
the  car.  See  Seaver  v.  Bradley,  179  Mass.  329 ;  Griffeu  v.  Manice,  16G 
N.  Y.  188  (only  such  reasonable  care  and  prudence  as  are  requisite  with 
respect  to  the  rest  of  the  building).  But  cf.  Springer  v.  Schultz,  205  111. 
144;  Burgess  v.  Stowe,  Mich.  (1903);  Becker  v.  Lincoln  II.,  174  Mo.  246 
(should  stop  at  a  floor  carefully);  155  Mo.  610.  See  further,  Blackwell  v. 
O'Gorman  Co.,  22  R.  I.  638.  The  law  on  this  subject  has  not  yet  lai'gely 
developed. 


CHAPTER   IV. 

TRANSPORTATION    OF   BAGGAGE. 

571.  Baggage  transportation  presents  some  unique  features  at 
our  common  law.  No  contract  is  made  for  carrying  such 
property,  as  in  the  case  of  ordinary  freight ;  but  the  duty  ol 
conveying  the  passenger's  baggage  as  common  carrier  is  in- 
cidental to  the  differently  graded  duty  of  conve34ng  the 
passenger  himself.  There  is  no  tariff  of  rates,  no  special 
payment  to  be  demanded  of  the  owner ;  but  one  who  pays  his 
personal  fare  to  a  passenger  carrier  is  entitled  (within  limits 
to  be  presently  noticed)  to  have  his  baggage  taken  likewise 
without  extra  charge.  And  yet  for  baggage,  as  for  the  freight 
which  one  takes  upon  direct  hire,  the  responsibility  assumed 
is  that  of  common  carrier;  while,  on  the  other  hand,  tlie 
relation  out  of  which  grows  the  present  indirect  bailment,  is 
that  of  passenger  carrier  simply.  We  may  say,  then,  that 
there  is  a  bailment  in  respect  of  baggage,  but  none,  to  speak 
precisely,  so  far  as  the  passenger  himself  is  concerned.^ 

572.  What,  then,  is  baggage,  we  may  ask  at  the  outset.  By 
"  baggage,"  in  the  legal  sense,  is  meant  simply  such  articles 
of  personal  necessity,  convenience,  comfort,  and  recreation,  as 
travellers,  under  the  circumstances,  may  well  take  with  them 
on  their  journey  ;  ^  or,  as  the  expression  goes,  "  ordinary  bag- 
gage." The  word  "luggage"  is,  perhaps,  the  more  common 
word  used  in  the  mother-country,  as   synonymous  wdth  our 

1  §§  665,  666  ;  4  Ex.  367,  372;  15  C.  B.  n.  s.  680.  Here,  as  in  case  of 
the  innkeeper,  we  find  public  policy  making,  by  inference,  an  extraor- 
diuan'  bailee  of  the  party  whose  vocation  thrives  by  the  patronage  of 
travellers.  But  there  is  this  striking  difference,  that  the  innkeeper's 
exceptional  liability  applies  to  whatever  personal  property  the  guest  may 
have  brought  with  him;  while  here  it  is  limited  to  what  is  properly 
"baggage."     lb. 

2  §  667. 


394  THE   LAW   OF  BAILMENTS 

American  term  "  baggage."  ^  Not  only  is  the  kind  of  property 
thus  carried  material,  but  its  quantity,  its  value,  and  more  es- 
pecially its  suitableness  for  the  purpose  of  the  particular  tour, 
must  be  taken  into  consideration.^   And,  while  the  courts  per- 

1  See  Brown  Law  Diet.     And  see  85  Cal.  329. 

2  §§  667,  668. 

Trunks,  valises,  carpet-bags,  chests,  and  the  like,  with  their  common 
travelling  contents,  may  be  regarded  as  ordinary  baggage ;  but  wares  and 
samples,  though  stowed  away  in  such  a  receptacle,  cannot ;  nor  can  a 
.sample  trunk.  10  C.  B.  n.  s.  154;  s.  c.  13  C.  B.  n.  s.  818;  25  Wend. 
(N.  Y.)  459;  97  Mass.  83;  41  Miss.  671.  Ailing  v.  Boston  & 
Albany  R.,  126  Mass.  121 ;  Pennsylvania  Co.  v.  Miller,  35  Ohio  St.  541  ; 
17  Fed.  (U.  S.)  209.  One's  own  shoes  and  wearing-apparel  are  appro- 
priately baggage ;  but  not  a  theatrical  wardrobe ;  and  a  great  quantity 
of  new  shoes  and  stock  for  shoes,  or  of  cloth,  whether  wrought  into  gar- 
ments or  not,  is  rather  to  be  considered  merchandise,  and  intended  for 
others  than  for  the  traveller's  personal  use  and  convenience.  4  E.  D. 
Smith  (N.  Y.),  178;  Baltimore  Steam  Packet  Co.  v.  Smith,  23  Md.  402; 
10  Cush.  (Mass.)  506.  But  see  42  N.  Y.  326.  A  single  watch  and  articles 
of  personal  jewelry  have  been  held  part  of  a  traveller's  proper  baggage  ;  but 
quite  the  reverse  as  to  a  quantity  of  watches,  jewelry,  or  plate,  appai-ently 
designed  for  sale  and  traffic  or  presents  ;  or  the  jewelry  of  some  one  else. 
4  Bing.  218;  10  Ohio,  145;  4  E.  D.  Smith  (N.  Y.),  181;  6  Ind.  242;  Mc- 
Gill  V.  Rowand,  3  Penn.  St.  451;  8  Bush  (Ky),  472  ;  2  Bosw.  (N.  Y.) 
589;  Mississippi  R.  v.  Kennedy,  41  Miss.  871 ;  85  Cal.  329. 

Not  only  such  goods  and  chattels  as  are  taken  by  the  traveller  as 
merchandise  are  found  thus  excluded  from  protection  as  "  baggage," 
but,  what  may  seem  harsher,  those  whose  taking,  likewise  with  a  view 
to  the  journey's  end,  has  solely  in  view  the  convenience  of  the  traveller's 
household,  or  something  else  ulterior  to  the  journey  itself ;  things  which 
are  unsuitable,  in  fact,  for  use  by  the  way,  but  only  for  use  when  the 
journey  is  over.  Such,  for  instance,  are  the  packed  bedding  and  bed- 
clothing  of  one  who  is  seeking  out  some  new  home  ;  and  his  pictures  and 
household  furniture  in  general.  Macrow  v.  Great  Western  R.,  L.  R.  6 
Q.  B.  612;  Connolly  v.  Warren,  106  Mass.  146  ;  63  Ohio  St.  274;  4  Bosw. 
(N.  Y.)  225;  and  see  L.  R.  4  Q.  B.  366  (child's  spring-horse);  113  Ga. 
589  (fruit  in  trunk).  And,  as  the  law  refuses  to  gratify  a  passenger  by 
giving  his  merchandise  and  household  articles  a  free  trip  at  the  carrier's 
special  risk  of  dangers,  so  it  disinclines  to  treat  as  baggage  that  which 
one  takes  with  him  for  a  present  to  his  friend,  or  to  accommodate  third 
parties  with  whom  the  carrier  is  in  no  privity,  and  from  whom  he  is  to 
get  no  profit.  4  Bosw.  (N.  Y.)  225;  42  N.  Y.  326.  The  decision  in 
Chicago  R.  v.  Boyce,  73  111.  510,  rests  probably  on  this  ground. 


CARRIERS  OF  PASSENGERS  395 

sistently  refuse  to  enhance  the  carrier's  extraordinary  risk  for 
the  privilege  of  those  who  would  abuse  their  opportunities  of 
having  things  taken  without  extra  charge  which  ought  to  be 
paid  for  as  freight,  they  accord  willingly  to  passengers  who 
bona  fide  pay  their  fares  a  liberal  interpretation  of  the  right  to 
carry  on  the  footing  of  baggage  whatever  may  in  a  genuine 
sense  be  needful  or  convenient  for  one's  present  journey, 
though  by  no  means  for  the  journey  exclusively.^ 

573.  For  money  which  is  included  bona  fide  in  the  passen- 
ger's baggage  for  his  travelling  expenses  and  personal  use  on 
the  journey,  not,  however,  exceeding  a  reasonable  sum,  it  is 
now  well  settled  that  a  passenger  carrier  is  liable ;  ^  though 
some   earlier  cases  held   otherwise.^     But   money  taken    by 

^  A  set  of  tools  of  reasonable  worth  may  thus  be  included  in  a  carpen- 
ter's or  mechanic's  baggage;  §  668;  Porter  v.  Hildebrand,  14  Penn.  St. 
129;  Kansas  City  11.  v.  Morrison,  34  Kan.  502;  professional  instruments 
in  that  of  a  surgeon  ;  Haimibal  R.  v.  Swift,  12  Wall.  (U.  S.)  262 ;  a  manu- 
script price-list  or  catalogue  for  his  own  use  in  that  of  a  travelling  agent ; 
Gleason  v.  Goodrich  Trans.  Co.,  32  Wis.  85;  Staub  v.  Kendrick,  121  Ind. 
226 ;  books  needful  for  prosecuting  his  studies  in  that  of  a  student ;  6 
Blatchf.  (U.  S.)  64;  whatever,  in  fine,  might  prove  useful  and  convenient 
on  the  way  to  one  of  a  particular  class  of  travellers,  though  its  chief  use 
be  at  the  journey's  end.  Even  pistols,  revolvers,  or  other  weapons,  car- 
ried for  one's  defence,  and  not  as  merchandise,  may  be  classed  as  baggage, 
especially  on  dangerous  routes.  Woods  v.  Devin,  13  111.  746  ;  22  111.  281. 
But  cf.  13  Md.  126.  So,  too,  as  it  is  held,  a  sportsman's  gun  or  fishing- 
tackle  carried  on  a  trip  for  his  personal  recreation ;  Parmelee  v.  Fischer, 
22  111.  212;  4  E.  D.  Smith  (N.  Y.),  453;  an  opera-glass;  Toledo,  &c.  R. 
V.  Hammond,  23  Ind.  379  ;  or  under  fitting  circumstances,  and,  more 
especially  for  invalid  travellers,  even  pillows,  bedding,  or  chairs.  Ouimit 
V.  Henshaw,  35  Vt.  604  ;  Parmelee  v.  Fischer,  22  111.  212.  The  legal  dis- 
tinction is  not  always  clearly  traceable,  perhaps,  for  circumstances  are 
allowed  their  due  weight  in  each  case. 

2  §  669;  Merrill  v.  Grinnell,  30  N.  Y.  594:  Jordan  v.  Fall  River  R., 
5  Cush.  (Mass.)  69;  24  111.  332;  Johnson  v.  Stone,  11  Humph.  (Tenn.) 
419;  Michigan  Central  R.  v.  Carrow,  73  111.  348;  Ilutchings  v.  Western 
R.,  25  Ga.  61. 

3  1  E.  D.  Smith  (N.  Y.),  95;  9  Humph.  (Tenn.)  621 ;  9  Wend.  (N.  Y.) 
85;  22  111.  278;  6  Ind.  242;  Yznaga  i'.  Steamboat  Richmond,  27  La.  An. 
90;  11  Humph.  419;  Whitmore  ?'.  Steamboat  Caroline,  20  Mo.  513;  First 
Nat.  Bank  v.  Marietta  R.,  20  Ohio  St.  259;  16  N.  Y.  Supr.  609  ;  Hickox 
V.  Naugatuck  R.,  31  Conn.  281. 


396  THE  LAW  OF  BAILMENTS 

the  passenger  in  large  amounts,  and  greater  than  he  can 
need  as  a  traveller,  especially  if  it  be  intended  for  some  ulte- 
rior purpose,  as  to  buy  at  the  place  of  his  destination  mer- 
chandise, household  goods,  or  even  clothing,  will  fail  of  the 
law's  safe  shelter.^  As  a  rule,  money  which  is  intended  purely 
for  trade,  business,  or  investment,  or  for  transportation,  and 
not  for  the  passenger's  own  use  and  convenience  for  the  con- 
tingencies of  the  journey,  cannot  be  termed  baggage.^ 

574.  In  determining  the  value  of  articles  -which  one  may  rea- 
sonably take  as  baggage,  the  rank  and  station  of  the  traveller 
are  circumstances  worth  considering.  A  steerage  passenger's 
clothing,  for  instance,  would  not  be  costly  in  comparison  with 
that  of  some  wealthy  person  travelling  on  a  first-class  ticket. 
To  the  extent  that  articles  taken  by  any  passenger  for  his  per- 
sonal use  when  travelling  exceed  in  quantity  and  value  such  as 
passengers  of  like  station  and  pursuing  like  journeys  commonly 
take,  they  are  not  baggage  in  the  strict  sense.     But  whether 

1  Neither  money  taken  by  an  attorney  for  his  client  to  meet  the  contin- 
gencies of  a  lawsuit,  nor  title  deeds,  can  be  classed  with  baggage ;  nor,  in 
general,  money  which  belongs  to  some  stranger  instead  of  the  passenger 
who  is  travelling  with  it.  Phelps  v.  London  R.,  19  C.  B.  n.  s.  321 ; 
Dunlap  V.  International  Steamboat  Co.,  98  Mass.  371. 

2  85  Cal.  329. 

Against  holding  the  passenger  carrier  strictly  accountable  as  a  com- 
mon carrier  for  large  suras  thus  taken,  two  objections  occur:  (1)  that, 
for  a  traveller's  personal  use  and  convenience,  a  moderate  amount  should 
suffice ;  (2)  that  the  traveller  is  himself  to  blame  if  he  lets  large  sums, 
and  property  which  is  exceedingly  valuable,  go  in  a  closed  trunk  into  the 
exclusive  custody  of  a  bailee,  without  giving  him  some  means  of  know- 
ing what  great  risk  he  runs.  But  the  concealment  of  a  small  sum  of 
money  in  one's  trunk  is  not  such  carelessness  or  misconduct  in  the  pas- 
senger as  should  exonerate  the  carrier ;  nor,  again,  such  a  concealment  of 
his  watch,  or  of  his  own  jewelry  of  moderate  worth.  10  Ohio,  358  ;  Fair- 
fax ;;.  N.  Y.  Central  R.,  73  N.  Y.  167. 

For  so  great  a  sum  as  .^11,250,  concealed  in  a  passenger's  trunk,  the 
carrier  is  certainly  not  liable  as  for  baggage.  9  Wend.  (N.  Y.)  85.  Jew- 
elery  worth  |30,000  should  not  be  checked  as  ordinary  baggage.  73  111. 
348.  But  in  5  Cush.  (Mass.)  69,  the  sum  of  $325  taken  in  a  traveller's 
trunk  on  a  short  journey  was  recovered.  And  in  30  N.  Y.  594,  $800  in 
coin  was  considered  not  an  excessive  amount  for  an  emigrant  passenger 
to  bring  over  with  his  baggage.     Cf.  22  111.  278. 


CARRIERS  OF  PASSENGERS  397 

such  excess  is  taken  or  not  is  a  question  of  fact  for  the  juiy.^ 
In  all  this  blending  of  law  and  fact,  much  must  practically 
be  left  to  abide  the  verdict  of  a  jury.  And,  in  estimating 
the  kind,  quantity,  and  value  of  the  baggage  which  is  allow- 
able to  the  passenger,  it  is  fair  to  take  into  view  whence  he 
comes,  whither  he  goes,  and  what  is  his  occupation  and  social 
standing.^  Moreover,  according  to  the  treatment  bestowed 
upon  certain  articles  wliich  the  passenger  takes  with  him,  both 
carrier  and  passenger  or  either  may  be  estopped  to  deny  that 
they  were  "  baggage."^ 

575.  Now,  concerning  the  nature  and  extent  of  that  risk 
which  the  passenger  carrier  incurs  with  respect  to  his  passen- 
ger's baggage,  Lord  Holt  twice  declared  pointedly  that  the 
extraordinary  responsibility  of  common  carrier  would  not 
attach,  unless  the  baggage  was  specially  paid  for.^  And,  as 
the  law  became  well  settled  in  much  later  times,  that  for  the 
passenger  himself  no  such  extraordinary  risk  was  incurred, 
jurists  began  to  argue,  not  without  some  force,  that  the  car- 
rier's obligation  to  convey  baggage,  being  but  accessory  to 
carrying  the  passenger,  and  a  matter  of  personal  convenience 
to  him,  ought  to  be  the  same  in  degree.^     But  the  current  of 

1  §§  670,  671.  See  35  Vt.  603  ;  3  Penn.  St.  451 ;  Fairfax  v.  N.  Y. 
Central  R.,  73  X.  Y.  167;  14  Fla.  523. 

2  Ouimit  V.  Henshaw,  35  Vt.  603;  McGill  v.  Rowand,  3  Penn.  St.  451; 
Fairfax  v.  N.  Y.  Central  R.,  73  N.  Y'.  167;  Brock  v.  Gale,  14  Fla.  523; 
Uexter  v.  Syracuse  R.,  42  N.  Y.  326  (railway  chargeable  for  materials 
for  dresses  as  well  as  clothing). 

In  New  York  Central  R.  v.  Fraloff,  100  U.  S.  24,  the  majority  of  the 
justices  (Justices  Field,  Miller,  and  Strong,  diss.),  in  effect,  upheld  a 
verdict  against  a  railroad  company  to  recover,  as  "  baggage,"  laces  valued 
by  a  lady  passenger  at  $75,000,  and  by  the  jury  at  S10,000.  This  is,  per- 
haps, the  severest  visitation  of  loss  upon  a  passenger  carrier  which  the 
reports  show,  in  respect  of  property  transported  as  a  mere  incident  to 
the  hired  conveyance  of  the  traveller's  person.  But  the  circumstances 
of  the  case  are  quite  peculiar.  The  laces  were  in  no  sense  to  l>e  regarded 
as  "merchandise,"  but  were  in  actual  use  as  wearing-apparel  by  a  foreign 
lady  of  superior  rank  and  wealth  ;  and  her  trunk  was  the  natural  recep- 
tacle for  such  things. 

2  Hoeger  v.  Chicago  R.,  63  Wis.  100 ;   576  post. 

*1  Salk   282;  1  Comyns,  25. 

e  See  Pollock,  C.  B.,"in  3  H.  &  C.  139. 


398  THE  LAW  OF  BAILMENTS 

modern  decisions,  English  and  American,  is  decidedly  to  the 
contrary ;  and,  whether  the  conveyance  be  by  horse  or  steam 
or  electric  power,  by  land  or  by  water,  it  is  now  firmly  settled 
that,  for  a  passenger's  baggage,  the  carrier  of  passengers 
assumes  the  full  risks  of  a  common  carrier ;  in  other  words 
that  he  is  to  be  regarded  in  this  particular  as  an  insurer 
against  all  but  the  exceptional  risks,  a  carrier  of  goods.^  The 
sum  paid  for  the  passenger's  own  fare  is  the  cari;ier's  compen- 
sation, then,  for  this  incidental  but  momentous  responsibility ; 
which  fare  all  who  travel  are  presumed  to  pay,  since  the  car- 
rier has  a  right  to  charge  it  and  enforce  the  collection.^  Nor 
matters  it,  provided  the  fare  be  paid,  whether  the  traveller 
himself  furnished  the  money,  or  others  did  so  on  his  behalf.^ 

576.  A  standard  of  extraordinary  responsibility  like  this 
must  have  been  established  mainly  for  the  comfort  and  con- 
venience of  the  travelling  public.  Yet  the  carrier  himself 
goes  not  unheeded ;  for,  not  only  is  his  merely  incidental  risk 
kept  down  to  what  is  reasonable  in  kind,  quantity,  and  value 
for  his  patron's  baggage,  and  his  legal  right  recognized  to 
charge  for  whatever  may  be  in  excess,  but  he  can  fix  the 
ordinary  tariff  of  passenger  fares  high  enough  to  afford  him 
ample  indemnity  for  the  liability  he  so  incurs ;  and  it  is  clear 

1  §  672  ;  12  C.  B.  313;  4  Bing.  218  ;  Macrowr.  Great  Western  R.,  L.  R. 
6  Q.  B.  612,  618;  19  Wend.  (N.  Y.)  234;  1  Strobh.  (S.  C.)  468;  6  Ohio, 
358;  Hannibal  R.  v.  Swift,  12  Wall.  (U.  S.)  262;  iMerrill  v.  Grinnell,  30 
N.  Y.  594;  Dunlap  v.  International  Steamboat  Co.,  98  Mass.  371 ;  Smith 
V.  Boston  &  iMaine  R.,  44  N.  H.  325,  330;  N.  Y.  Central  R.  v.  Fraloff, 
100  U.  S.  24. 

2  McGill  V.  Rowand,  3  Penn.  St.  451 

3  4  E.  D.  Smith  (N.Y.),  453. 

For  baggage  of  an  unreasonable  quantity,  a  carrier  may  always  demand 
special  compensation  from  the  passenger  concerned  ;  but,  long  before 
railways  were  introduced,  the  practice  prevailed,  in  England  and  America, 
of  making  no  charge  for  baggage  unless  it  exceeded  a  certain  weight. 
§  672 ;  1  Comyns,  25.  The  rule  of  the  text  applies  to  all  carriers  of 
passengers  who  travel  customarily  with  baggage  ;  not  naturally  to  a 
street-railway  or  omnibus,  whose  customers  are  merely  conveyed  from 
street  to  street.  But  the  character  of  the  business  pursued  is  more 
material  than  the  nature  of  the  vehicle.  See  Dibble  v.  Brown,  12  Ga. 
217. 


CARRIERS  OF  PASSENGERS  399 

that,  were  the  baggage  liability  diminished,  the  public  would 
travel  less  frequently  than  they  do  at  prevailing  rates.  By 
the  ticket  purchase  or  otherwise,  there  should  appear  an  implied 
contract  for  baggage  without  essential  error  or  imposition.^ 

577.  Concerning  what  is  not  properly  baggage,  and  yet  has 
been  accepted  as  such,  the  passenger  carrier's  liabihty  has  not 
been  clearly  defined  by  the  courts.  A  passenger  carrier  may 
refuse  to  carry  as  baggage  what  is  not  such ;  while  even  as 
to  freight  he  is  protected  by  the  scope  of  his  vocation.^  Some 
cases  take  strong  ground  against  the  passenger  who  know- 
ingly presents  for  acceptance  as  baggage  what  he  knows  is 
not  baggage  ;  ^  and  yet  the  carrier's  own  knowledge,  or  that  of 
his  baggage  agent  on  this  point,  ought  to  avail  something. 
Any  passenger  carrier  who  perceives  that  an  article  in  his 
keeping  is  not  properly  baggage  may  silently  reserve  the  right 
to  charge  as  freight  at  the  end  of  the  journey.*  But,  while 
the  party  who  offers  goods  for  transportation  is  bound  to  the 
observance  of  good  faith,  he  may  yet  throw  it  upon  the  carrier 
to  put  certain  inquiries  and  to  make  timely  decision  whether 
articles  of  doubtful  kind  or  value  shall  go  as  baggage  or  not.^ 

1  §  672;  67  Conn.  417. 

2  §§  673,  686 ;  70  Cal.  169. 

3  Dunlap  V.  Steamboat  Co.,  98  Mass.  371 ;  10  C.  B.  n.  s.  1.54  (deceit) ; 
Michigan  Central  R.  v.  Carrow,  73  111.  348;  Ailing  v.  Boston  &  Albany 
R.,  126  Mass.  1-21;  63  Wis.  100;  44  N.  H.  32.5.  The  animus  of  such 
cases  bears  against  "  sample  triinks,"  such  as  commercial  travellers  usu- 
ally know  are  forbidden  carriage  as  baggage.  See  35  Ohio  St.  541  ;  126 
Mass.  121;  29  Minn.  160;  52  Kan.  398;  79  Me.  559  ("a  legal  fraud," 
which  is  rather  strong  language).     Cf.  33  P'ed.  (U.  S.)  412. 

The  carriage  by  "  baggage  express  "  is  the  carriage  not  of  strict  bag- 
gage, but  of  a  trunk  and  contents.     74  111.  116. 

*  §§  673.  688;  14  C.  B.  n.  s.  641.  Paying  extra,  as  though  for  baggage 
of  over-weight,  does  not  entitle  merchandise  to  go  through  as  paid  freight. 
38  111.  219.  But  an  extra  payment  made  in  good  faith  as  for  freight 
protects.  127  111.  598.  The  carrier  may  make  inquiry  or  even  more. 
85  Va.  217. 

5  §  674;  8  Ex.  .30;  12  Wall.  (U.  S.)  262,  271;  32  Kan.  55;  Belfast  R. 
V.  Keys,  9  H.  L.  556;  INIinder  v.  Pacific  R.,  41  Mo.  503;  N.  Y.  Central  R. 
V.  Fraloff,  100  U.  S.  24  (mere  silence  as  to  true  value);  35  Ohio  St.  541 ; 
Norfolk  R.  V.  Irvine,  85  Va.  217  ;  Perley  v.  N.  Y.  Central  R.,  65  N.  Y. 
374 ;  67  N.  Y.  208 ;  60  Ark.  433. 


400  THE  LAW   OF  BAILMENTS 

Such  a  rule  is  reasonable;  and  hence  it  seems  just  to  con- 
sider in  general  cases  of  acceptance  as  baggage,  that  the 
passenger  carrier  becomes,  at  all  events,  bound  as  a  gratuitous 
bailee  to  bestow  slight  diligence  and  good  faith  upon  such 
transportation.! 

578.  A  further  question  arises  as  to  hand-baggage,  SO  called, 
and  the  passenger  carrier's  liability  for  such  property.  Some 
courts  have  asserted  too  broadly  that  hand  baggage  is  not  to 
be  deemed  baggage  ;  and  this  is  erroneous,  for  unless  the 
passenger  clearly  secretes  and  fails  to  confide  such  property 
to  the  carrier,  the  latter  incurs  some  sort  of  a  bailment  lia- 
bility over  such  property.  In  travel  for  long  distances,  or 
over  night,  more  especially,  and  to  some  extent  under  other 
circumstances,  a  passenger  must  have  certain  things  near  his 
person ;  and  racks  are  specially  provided  and  regulations 
made  in  travelling,  wliich  recognize  such  property  as  under 
the  carrier's  charge.  Hence  various  late  decisions,  to  the 
extent,  at  least,  of  establishing  that  for  negligence  or  mis- 
conduct on  the  part  of  the  carrier  or  his  agents,  such  as 
causes  loss  or  injury  to  hand-baggage,  the  carrier  himself  is 
liable.^  Thus  is  recognized  a  certain  bailment  liabiUty ;  and 
it  seems  reasonable  to  infer  that  the  same  exceptional  stand- 
ard as  common  carrier  applies  to  hand-baggage  as  to  other 
baggage,  only  that  here  there  is  a  mixed  custody,  as  in  some 
other  instances,  so  that  the  passenger's  own  contributory  care- 
lessness or  misconduct  becomes  material  to  consider,  in  case 
of  such  loss  or  injury.^ 

1  See  §  674;  13  C.  B.  n.  s.  818;  4  Mo.  App.  582;  126  Mass.  121;  29 
Minn.  160;  Humphreys  v.  Perry,  148  U.  S.  627. 

2  §§  680-684;  L.  R.  1  Q.  B.  54;  16  C.  B.  13;  Kinsley  v.  Lake  Shore 
R.,  125  Mass.  54  ;  124  N.  Y.  53;  16  Lea  (Tenn.),  380  ;  72  Iowa,  228 ;  69 
Tex.  120.  Certain  sleeping-car  cases  may  be  classed  with  ordinary  bail- 
ments of  the  third  class,  since  a  sleeping-car  company  is  not  a  common 
carrier.  See  84  Ind.  474;  143  Mass.  267;  92  Ga.  161;  28  Neb.  239;  93 
Tenn.  .53;  95  Ga.  314;  95  Ga.  810;  98  Mo.  App.  351. 

8  §§  681,  682,  686;  Bunch  i,-.  Great  Western  R.,  17  Q.  B.  D.  215;  aff. 
13  App.  Cas.  31. 

For  what  the  passenger  takes  as  hand-baggage  and  loses  or  injures  by 
his  own  want  of  ordinary  care,  he  alone  must  suffer,  of  course.     L.  R. 


CARRIERS  OF  PASSENGERS  401 

579.  In  general,  the  passenger  and  his  baggage  should  go 
together;  and  the  passenger  and  passenger  carrier  have  re- 
ciprocal duties  and  rights. ^  The  passenger  should  use  due 
care  in  packing,  fastening,  and  marking,  so  as  to  identify 
what  he  offers  for  transportation,  and  he  should  be  honest.^ 
In  connection  with  the  bailment  the  carrier  may  make  reason- 
able, but  not  unreasonable,  rules  and  regulations.^ 

680.  Special  contract  or  usage  may  affect  the  liability  for  bag- 
gage, as  in  common  carriage  generally ;  but  such  terms  must,  as 
in  other  cases,  be  consonant  with  public  policy  and  seasonably 
brought  home  to  the  passenger's  knowledge.*  Legislation, 
too,  is  sometimes  found  on  this  subject.^ 

6  C.  P.  44;  17  Q.  B.  D.  215;  143  Mass.  243;  183  Mass.  175;  123  U.  S. 
61.  And  in  some  cases  it  may  be  said  furthermore,  that  for  the  money 
and  valuables  which  the  passenger  takes  exclusively,  secretly  and  xincon- 
fidingly  on  his  person,  especially  if  this  be  of  more  than  "  baggage  "  value, 
he  fails  to  establish  a  bailment  to  the  carrier.  7  Hill  (N.  Y.),  47; 
3  C.  P.  D.  221 ;  Abbott  v.  Bradstreet,  55  Me  530 ;  Weeks  v.  Xew  York 
R.,  72  X.  Y.  50;  20  Ohio  St.  259;  123  U.  S.  61;  29  Minn.  160. 

As  to  the  rule  of  mixed  custody  in  freight,  see  ante,  353,  354  (drover 
with  cattle,  driver  of  team  on  a  ferry,  etc.).  And  see  4  C.  B.  x.  s.  676 
(unreasonable  to  require  passengers  to  pay  freight  for  coats,  umbrellas, 
etc.,  or  else  bear  all  risk). 

1  §§  675,  679;  Wilson  i\  Grand  Trunk  R.,  56  Me.  60;  73  N.  Y.  167. 
Cf.  11  Rob.  (La.)  24.  If  through  the  carrier's  act  passenger  and  baggage 
become  separated,  the  carrier  bears  the  risk.     lb. ;  86  Mo.  App.  332. 

2  §  679. 

3  §  679;  McCormick  v.  Penn.  Central  R.,  80  N.  Y.  353;  ib.  99  N.  Y. 
65.  Reasonable  rules,  reasonably  enforced  as  to  all  alike,  are  requisite, 
though  a  rule  as  between  passenger  and  carrier  may  be  mutually  waived. 
See  94  Ala.  286  (rule  reasonable,  which  excludes  dogs  from  the  passenger 
cars);  66  Tex.  603  (as  to  guns). 

*  §§  689,  690;  10  C.  B.  n.  s.  453;  Stewart  v.  London  R.,  3  H.  &  C. 
135  (cheap  excursion  trains).  The  English  rule  is  more  lax  than  the 
American,  save  where  the  Railway  and  Canal  Traffic  Act  applies.  But 
as  to  a  passenger's  knowledge  of  special  conditions,  see  (1894)  App.  Cas. 
217  ;  1  Q.  B.  D.  515.  In  this  country  conditions  not  clearly  brought 
to  the  paying  passenger's  notice  before  the  journey  begins  are  not  much 


5  §  691 ;  Acts  17  &  18  Vict.  c.  31 ;  31  &  32  Vict.  c.  119 ;  100  U.  S.  24; 
125  X.  Y.  155  (to  be  reasonably  interpreted). 

26 


402  THE  LAW   OF  BAILMENTS 

581.  Liability  for  baggage  lasts  generally  until  the  passenger 
has  had  a  reasonable  opjiortunity  to  receive  and  take  charge 
of  it,  after  it  has  reached  its  destination ;  and  it  terminates 
upon  a  delivery  back  or  over  to  the  passenger  or  his  substitute, 
in  suitable  or  excusable  condition.^ 

582.  The  carrier's  right  of  lien  as  to  baggage  exists  as  in 
Other  cases  of  property  transportation,-  And  this  lien  may 
be  extended  so  as  to  include  the  proper  charges  of  storage, 
where  the  passenger  delays  unreasonably  to  take  away  the 
property  after  its  due  arrival.^ 

583.  The  practice  in  suits  for  lost  or  injured  baggage  is  not 
unlike  that  in  the  bailment  of  common  carriage  generally.^ 

favored.  See  §  690;  16  Penn.  St.  67;  2  Ohio  St.  131;  23  Fed.  (U.  S.) 
765;  48  N.  Y.  212;  143  Mass.  267;  73  N.  Y.  329;  32  Penn.  St.  208; 
38  Kan.  45. 

But  where  special  conditions  are  brought  home  seasonably  to  the 
passenger,  on  face  of  a  ciieck  or  ticket,  they  take  effect,  and  the  special 
conditions  most  favored  as  to  baggage  are  such  as  tend  to  restrict  the 
weight  and  value  thereof  and  limit  the  baggage  responsibility  accordingly, 
when  nothing  special  is  paid.  Such  restrictions  should  be  just  and  rea- 
sonable ;  as,  e.  g.,  in  considering  the  length  or  character  of  the  journey,  or 
whether  there  is  a  consideration  of  reduced  rates.  See  57  N.  Y.  1 ;  60 
Fed.  (U.  S.)  624  (Cal.);  11  Pac.  R.  686. 

Sj^ecial  provision  that  "  English  law  "  will  apply  does  not  override  our 
own  American  rule  of  public  policy.     110  Fed.  (U.  S.)  415. 

The  usual  standard  of  liability  for  freight  applies  to  baggage  ;  with 
exceptions,  as  by  act  of  God,  act  of  public  enemy,  act  of  customer,  or  act 
of  public  authority.     §  681 ;  Part  VI,  c.  4. 

1  §  692;  3  Ex.  D.  153;  14  Q.  B.  D.  228;  35  Yt.  605;  34  N.  Y.  548; 
27  Iowa,  22;  73  111.  510;  131  Mass.  207.  As  to  reasonable  time  or 
opportunity,  the  rule  differs  not  essentially  from  that  of  common  carriers 
generally.  See  ante.  Part  VI,  c.  6;  and  see  §  692;  34  N.  Y.  548;  85 
Vt.  605;  8  Bush  (Ky.),  184;  33  Fed.  (U.  S.)  412  ;  161  Mass.  67;  93  Ga. 
801. 

So  as  to  rule  of  accepting  as  for  present  transportation,  the  rule  of  Part 
VI,  c.  3,  applies.  See  §§  677,  678;  31  Conn.  281;  17  Q.  B.  D.  215;  44 
Iowa,  548  (receipt  for  over  night);  58  Ga.  216  ;  3  Mich.  51;  139  Mass. 
423;  42  Ark.  200;  74  Mich.  180;  40  Minn.  144. 

-  §693;  3  M.  &  W.  248  (cannot  thus  detain  the  passenger  or  the 
clothes  he  wears), 

3  §§  692,  693. 

*  §§  694,  695  ;  4  C.  B.  N.  s.  307;  L.  R.  5  Q.  B.  241 ;  35  Me.  55.     And 


CARRIERS  OF  PASSENGERS  403 

see  58  N.  Y.  287  (partnership  property)  ;  (1895)  2  Q.  B.  387  (master  and 
servant).  As  to  proof,  the  burden  is  on  the  passenger,  but  a  check, 
receipt,  way-bill,  or  other  token,  charges  the  carrier  presumptively, 
§  694;  67  N.  Y.  11 ;  45  N.  Y.  184  ;  20  Kan.  669.  Cf.  123  N.  Y.  363  ;  106 
Fed.  (U.  S.)  739.  As  to  the  rule  of  damages,  see  ante,  478,  479 ;  73  N.  Y. 
167  ;  27  Iowa,  22;  14  Fla.  523  (worth  to  the  owner  for  personal  use). 

Concerning  connecting  carriers  and  their  liability  for  baggage,  the 
rules  elsewhere  noticed  apply.  Ante,  Part  VI,  c.  9.  And  see  §  696,  and 
cases  cited ;  69  N.  II.  648. 


INDEX 


[References  are  to  Paragraph  Numbers^ 


ACCESSION,  77. 
ACTION, 

in  general  bailments,  12,  60,  91,  105,  119,  127. 

as  to  common  carriers,  350,  418,  et  seq.,  452  et  seq. 
passenger  carriers,  541,  559,  583. 
AGENCY, 

in  general  bailments,  9,  18,  56,  78,  86,  120. 

in  pledge,  152-155,  159-161,  175. 

public,  as  in  post-office,  224-227. 

as  to  innkeepers,  240. 

in  common  carriage,  284,  304,  344,  363,  364,  393,  420,  468,  487  et  seq. 

in  carriage  of  passengers,  522,  524,  553,  554,  556-566. 
AGISTOR,  74,  81. 
ANIMALS, 

hired,  112-116. 

at  an  inn,  237. 

in  common  carriage,  289,  352,  353,  385. 
ANTICHRESIS,  178. 

BAGGAGE,  see  Passenger  Carriers,  459,  476,  571-583. 
BAILMENTS, 

in  general : 
nature,  essentials,  and  definition,  1-3, 
distinguished  from  gift  or  sale,  4. 
delivery  back  or  over  contemplated,  4. 
leading  case  (1703)  :  Coggs  v.  Bernard,  5. 
classification  :  recompense ;  care,  6,  7- 
honesty  and  good  faith  ;  agency,  8,  9. 
effect  of  special  contract,  10. 
other  cardinal  maxims,  11. 
form  of  action  and  burden  of  proof,  12. 


406  INDEX 

[References  are  to  paragraph  numbers] 

BAILMENTS  —  continued, 
for  bailor'' s  sole  benefit;  or  without  benefit  to  the  bailee : 
classification  of  subject,  13. 

I.  Matters  Preliminary,  nature  and  kinds,  14,  15. 
■whetlier  founded  in  contract,  16. 

test  of  recompense  ;  agency,  17,  18. 
personal  property  the  subject-matter,  19. 
delivery  or  taking  possession  ;  ownership,  20,  21. 
contract  for  bailment  distinguished,  22. 

II.  Accomplishment   of  Bailment   Purpose :   slight  care  and  diligence, 
23-25. 

false  standards  stated,  26. 

circumstances  and  just  conclusion,  27,  28. 

honesty  and  good  faith  requisite,  29. 

cases  for  illustration,  30-32. 

inevitable  accident,  etc.,  excuses,  33. 

liability  for  closed  receptacle,  34. 

conclusion  as  to  care,  diligence,  and  honesty,  35. 

effect  of  special  contract,  36. 

other  mutual  rights  and  duties,  37-39. 

III.  Termination  of  Bailment :  notice,  demand,  etc.,  40,  41. 
redelivery  or  delivery  over  ;  stakeholder,  42,  43. 

effect  of  adverse  title ;  of  revocation,  44,  45. 
place  of  redelivery,  etc.,  46. 
duty  of  account  or  report,  46  a. 
for  bailee's  sole  benefit;  gratuitous  loan  for  use: 

comparison  with  former  class;  heads  of  discussion,  47,  48. 

I.  Matters  Preliminary  :  mutuality;  subject-matter;  period,  49-51. 

II.  Accomplishment  of  Bailment  Purpose  :  great  diligence,  52. 
good  faith  also  requisite,  53. 

circumstances;  false  standards ;  agency,  54-56. 
special  contract;  beneficial  use,  57)  58. 
lender's  and  borrower's  duties  correspond,  59. 
rigiits  of  action  against  third  parties,  60. 

III.  Termination  of  Bailment :  tender,  demand,  etc.,  61. 
duty  as  to  time,  place,  and  person,  62. 

detention  for  lawful  expenses,  etc.,  63. 
for  mutual  benefit;  bailments  for  hire: 

in  general ;  other  bailments  of  this  class,  64,  65. 
contract  for  hire  and  its  essentials,  66-69. 
contract  distinguishable  from  bailment,  71. 
non-contract  bailments  in  some  cases,  72. 
hired  services  about  a  chattel  considered,  73. 

I.   Matters  Preliminary:  vocations  of  this  kind;   recompense  intended, 
74-76. 


INDEX  407 

[References  are  to  paragraph  numbers] 

BAILMENTS  —  continued. 

law  of  accession  iu  materials,  77. 
no  bailment  until  delivery,  1%. 

II.  Accomplishment  of  Bailment  Purpose :   ordinary  care  and  diligence 
required,  79-80. 

local  custom  ;  skill ;  special  contract,  81-84. 
honesty  and  good  faith,  85. 
'agency ;  liability  to  third  persons,  86,  87. 
undisturbed  possession ;  paramount  owner,  88. 
right  of  compensation  ;  expenses,  89,  90. 
action  against  third  parties,  91. 
insurance  of  chattel,  92. 

III.  Termination  of  Bailment  :  delivery  hack  or  over,  etc.,  93,  94. 
paramount  owner  ;  change  of  owners,  95,  96. 

demand;  successive  bailment  duties,  97,  98. 
lien  to  secure  recompense,  99,  100. 
riglit  to  sue  apart  from  lieu,  101. 
lien  how  preserved  ;  enforcement ;  priority,  102-101. 
general  right  of  recompense,  105. 
for  mutual  benefit  ;  hired  use  : 
classification,  106. 

I.  Matters  Preliminary  :  manner  and  period  of  use,  107,  108. 
contract  for  bailment  mutual,  109. 

II.  Accomplishment  of  Bailment  Purpose  :  hirer's  duties,  110. 
ordinary  care  and  diligence;  illustrations,  111-114. 
bailment  transcended  ;  deviation,  115,  116. 

dishonesty;  attempt  to  sell,  pawn,  etc.,  117,  118. 

responsibility  for  sub-users  or  agents,  120. 

joint  hirers,  121. 

injury  to  third  persons,  122. 

letter's  duties  correspond  ;  warranty ;  expenses,  123-126. 

right  of  action  against  third  parties,  127. 

special  contract,  128. 

III.  Termination   of  Bailment :    methods ;    demand   and    tender,    129, 
130. 

duty  of  redelivery  ;  paramount  owner;  recompense,  131-133. 

See  also  Pledge  or  Pawn. 
exceptional  and  their  elements,  220-223. 

See  Postmasters,  Innkeepers,  Common  Carriers. 
BANK,  special  deposits,  31,  44,  74-76,  79,  80. 
BILL  OF  LADING,  30G,  312,  355,  372,  374,  383,  410,  429,  466. 
BOARDING-HOUSE  KEEPERS,  232,  235. 
BURDEN  OF  PROOF,  see  Evidence,  3S4,  474,  502. 


408  INDEX 

[References  are  to  paragraph  numbers] 

CARRIERS,  COMMON  (or  PUBLIC), 

in  general : 

bailment  principle  applied,  257. 

definition;  private  and  public,  laud  or  water,  258,  259. 

foundation  of  exceptional  responsibility,  260-262. 

influence  of  compensation  ;  private  carriers,  263,  264. 

must  serve  public  alike,  etc.,  265,  266. 

development  of  carrier  vocation,  267,  268. 
nature  of  relation : 

for  reward;  vocation,  269-271. 

regular  or  casual  calling,  272-275. 

pursuits  enumerated  ;  by  land,  276-279. 

carriers  by  water,  280-282. 

responsible  transporter;  agent,  lessee,  etc.,  283-285. 

charter  restraints  ;  partnerships,  286-288. 

kinds  of  property  transported;  money,  animals,  things  dangerous,  etc., 
289,  290. 
bailment  to  common  carrier : 

duty  of  receiving,  291. 

for  reasonable  hire  ;  equal  rates,  etc.,  292-294. 

limit  by  accommodations,  295. 

delays  reasonable  or  unreasonable,  296. 

limit  by  scope  of  vocation,  297- 

rules  for  receiving  ;  express,  etc.  facilities,  298-300. 

waiver;  refusal  to  wrongful  parties,  301,  302. 

responsibility  begins  on  receipt  for  immediate  transportation,  303-305. 

delivery  of  bill  of  lading,  etc.,  306. 

usage  and  special  contract,  307- 

sending  to  receive  goods,  308. 

preliminary  bailment,  not  as  carrier,  309,  310. 

carrier  loads  and  stows,  311. 

illustrations  :  water  carriage,  ferry,  312,  313. 

consignor's  duties :  packing  and  directing,  314-316. 

mixed  responsibility  in  some  cases,  317. 
bailment  responsibility  of  the  common  carrier : 

duty  and  legal  liability  distinguished,  318. 

duty   of    ordinary    care ;    in   loading,   carrying,    encountering   disaster, 
319-321. 

unreasonable  delay  or  premature  shipment,  322,  323. 

legal    liability   transcends   duty:   insurer,    with    four    exceptions,    324, 
325. 

usage,  special  contract  and  legislation  modify,  326. 

(1)    act  of  God  :  natural  disaster;  spoliation,  etc.,  327-333. 

but  not  losses  by  fire  or  explosion,  328. 


INDEX  409 

[References  are  to  paragraph  numbers] 

CARRIERS,  COMMON   (or  PUBLIC)  — eonlinued. 

(2)  act  of  public  euemies  :  war,  foreign  or  civil,  piracy,  etc.,  334-336. 
but  not  loss  by  mobs  or  rioters,  335. 

(3)  act  of  customer  himself;  bad  packing,  misdirection,  etc.,  337-340. 
mixed  custody  ;  carrier's  own  vigilance,  341,  342. 

(4)  act  of  public  authoi'ity :  embargo,  seizure,  legal  process,  etc.,  343. 
carrier  liable  for  servants,  etc.,  as  for  himself,  344. 

proximate  and  remote  cause  of  loss  ;  illustrations,  345-349. 
legal  excuse  set  up  in  defence  :  proof,  etc.,  350. 
carrier  not  a  technical  "insurer,"  351. 
transportation  of  animals,  352,  353. 
mixed  custody  an  element;  drover,  ferries,  etc.,  353,  354. 
exceptions  stated  in  bills  of  lading,  355. 
usage,  special  contract,  and  legislation : 

(1)  effect  of  usage,  356,  357. 

(2)  effect  of  special  contract;  English  doctrine,  358,  339. 
Act  of  Parliament  corrects,  360,  361. 

American  judicial  doctrine  compared,  362,  363. 

as  to  carrier's  servants  or  agents,  364. 

qualifications  considered  :  valuation,  time  and  method,  etc.,  365-367. 

contract  to  enlarge  risks,  368. 

special  contract,  how  made  :  English  and  American  rules,  369-371. 

terms  in  bills  of  lading,  way-bills,  etc.,  372. 

indirect  mutual  assent,  seven  elements,  373-380. 

effect  of  sender's  refusal ;  must  carry,  381. 

evidence  and  burden  of  proof,  382-3S5. 

concise  expressions  ;  proximate  and  remote  cause,  386,  387. 

(3)  effect  of  legislation  :  English  and  American,  388. 
termination  of  carrier's  responsibility : 

delivery  in  good  condition,  etc.,  389. 

delays,  reasonable  and  unreasonable,  390,  391. 

delivery  to  right  party ;  impostor,  etc.,  392. 

agent  of  consignee  ;  document  of  title,  393,  394. 

special  directions  ;  paramount  owner,  etc.,  395,  396. 

doubt ;  "care  of  "  ;  misdirection  ;  stoppage  in  transitu,  397,  398. 

property  unclaimed  or  refused,  399. 

joint  parties  ;  unloading,  intercepting,  400-404. 

notice  or  opportunity;  "  C.  O.  D.";  ratification,  etc.,  405-407. 

carrier  for  transit  and  mere  bailee  afterwards,  408,  409. 

no  personal  delivery  for  vessels,  railway,  etc.,  410. 

conflicting  rules  as  to  notice  or  opportunity,  411,  412. 

expressmen  make  personal  delivery,  413. 

carrier  and  warehouseman  in  general,  414. 

usage,  special  contract,  or  legislation,  415-417. 


410  INDEX 

[References  are  to  paragraph  numbers] 

CARRIERS,   COMMON   (ok  FXJBLIC)  — continued. 

general  rights  of  common  carriers^  418. 

(1)  special  property :  action  against  third  persons,  agents,  etc.,  419,  420. 

(2)  riglit  of  coirpeusation  ;  "freight,"  etc,  421,  422. 
when  right  begins  ;  goods  intercepted,  422  a,  423. 
entire  contract  unapportionable,  424,  425. 

no  freight  on  what  has  perished,  426. 

delivery  in  parts,  427- 

freight  paid  in  advance,  428. 

bill  of  lading  expressions,  429. 

liability  of  consignor  or  consignee,  430-433. 

reimbursement  of  charges  and  expenses,  434. 

fault  of  shipper  ;  demurrage,  etc.,  435,  436. 

public  rates  of  transportation,  436  a. 

recompense  at  journey's  end,  437- 

lien  security  considered,  437-446. 

right  of  recompense  aside  from  lien,  447. 

mutual  duties  of  carrier  and  consignee,  payment  and  delivery  concurrent, 

448-450. 
shipment  entire  or  in  portions,  451. 
remedies  against  common  carriers,  452. 

(1)  for  inexcusably  refusing  to  receive,  453. 

(2)  for  inexcusable  loss  or  injury  in  transit,  454. 
form  of  action  ;  contract  or  tort,  455-460. 

party  plaintiff;  consignor  or  consignee,  etc.,  461-467. 
party  defendant;  responsible  transporter,  etc.,  468-470. 
declaration  and  pleadings,  471-473. 
proof  in  suits  against  carrier,  474-477. 
damages  recoverable,  478,  479. 

(3)  inexcusable  acts  in  final  delivery,  480. 
injury;  effect  of  payment,  481,  482. 
extortionate  charges,  483. 

conflict  of  laws  in  remedies,  484. 
connecting  carriers : 

nature  of  relation,  485,  486. 

how  held  out;  agency  or  partnership,  487,  488. 

through  contracts  of  freight,  489. 

principles  of  liability  stated,  490,  491." 

presumptions,  English  and  American,  492-494. 

carrier  occasioning  the  loss,  495. 

special  contract;  admissions  ;  through  receipt,  496-499. 

general  stipulations  considered,  500. 

intermediate  carrier  not  contracting,  501. 

presumption  in  case  of  loss,  502. 

liability  towards  one  another,  503. 


INDEX  411 

[References  are  to  paragraph  numbers] 

CARRIERS,    COMMON   (ou  VVBLIC)  —  continued. 
when  risk  begins  and  ends,  504,  505. 
recompense,  etc.,  back  charges,  506. 
guaranty  of  rates  ;  notice,  507,  508. 
inter-St(tte  commerce  legidation : 
act  of  18S7,  509,  510. 
commission;  scope  of  act,  512-514. 
pooling  earnings  :  long  and  short  haul,  515,  516. 

CARRIERS  OF  PASSENGERS, 

matters  preliminary  to  journey : 

analogous  to  bailments;  etc.,  517,  518. 

(1)  who  are  passenger  carriers,  519. 

by  land  or  water  ;  responsible  transporter,  519  a. 
connecting  facilities;  agency  in  transportation,  520-522. 

(2)  who  are  passengers,  523. 

free  or  paying;  trespasser,  etc.,  524. 
character  of  conveyance,  etc.,  525,  526. 

(3)  obligation  to  receive,  527. 
qualifications;  suitable  persons,  etc.,  528,  529. 
reasonable  rules,  530. 

(4)  passage  tickets  and  fares,  531. 
rates  ;  modern  ticket  system,  532-534. 
differing  rates  and  facihties,  534. 
special  restrictions  of  tickets,  535. 
reasonable  rules  as  to  fare,  536. 

loss  of  ticket;  enforcement  of  fares,  537,  538. 
aggrieved  passenger;  ticket-seller,  539,  540. 

(5)  action  for  refusal  to  receive  ;  damages,  541,  542. 

(6)  legislation  concerning  fares,  etc.,  543. 
duties  and  rights  incidental  to  the  journey,  544. 

(1)    suitable  depot  or  place  of  receiving,  545,  546. 
means  and  appliances  for  transporting,  547. 
as  to  latent  defects,  new  inventions,  etc.,  548,  549. 
safety  and  comfort  on  board;  order  maintained,  550-552. 
good  treatment  by  carrier's  servants,  553. 
trustworthy  and  capable  employes,  554. 
duties  on  the  road;  steam  transportation,  etc.,  555,  556. 
no  unreasonable  deviation  or  delay  ;  time-tables,  557,  558. 
right  of  action  in  sucli  respects,  559. 
changes  and  way-stations,  560. 
■     (2)    Hability  for  injuring  or  killing  passenger ;  contributory  negligence, 
etc.,  561-563. 

(3)  special  contract  and  circumstances,  564,  565. 

(4)  general  right  of  ejection,  566. 


412  INDEX 

[References  are  to  paragraph  numbers] 

CARRIERS  OF  PASSENGERS  — co;i//«Kei. 
termination  of  the  journey  : 

landing-place,  etc.,  567,  568. 

duty  of  passenger  ;  final  recompense,  569,  570. 

elevators,  whether  passenger  carriers,  570,  note, 
transportation  of  baggage.,  571. 

baggage  defined,  572-574. 

liability  that  of  common  carrier,  575,  576. 

as  to  things  not  baggage,  accepted  as  such,  577. 

as  to  hand-baggage,  578. 

passenger's  duties  :  rules,  etc.,  579. 

passenger  and  baggage  go  together,  579. 

special  contract  or  usage,  580. 

end  of  carrier's  liability  as  such,  581. 

carrier's  lien  on  baggage,  582. 

suits  for  lost  or  injured  baggage,  583. 
CARRIERS,  PRIVATE,  74. 
"  C.  O.  D.,"  see  Caeriers,  406. 
COLLATERAL  SECURITY,  see  Pledge. 
COMMERCE,  INTER-STATE,  see  Carriers,  509-516. 
CONSIGNOR  AND  CONSIGNEE,  see  Carriers,  Common,  430-433. 

CONTRACT, 

non-contract  bailments,  3,  16,  72. 
distinguished  ftom  bailment,  11,  22,  71,  109. 
effect  of  special,  10,  57,  81-84,  128,  189  a,  205,  249. 
in  common  carriage,  307,  326,  358-387,  416,  443,  496-500. 
in  carriage  of  passengers,  564,  580. 
CUSTOM,  see  Usage. 

DELIVERY,  see  Bailments. 
DEMURRAGE,  see  Carriers,  436. 
DEPOSIT,  14,  31,  44,  74-76,  79,  80. 
DEVIATION,  see  Bailments,  115,  116. 
DILIGENCE,  see  Bailments,  6,  7- 

ELEVATORS,  PASSENGER,  570,  note. 

EVIDENCE,  in  suits,  12,  119,  245,  350,  382-384,  474,  502. 

EXPRESS,  276,  277,  299,  308,  413. 

GUEST,  see  Innkeepers. 


INDEX  413 

[References  are  to  paragraph  numbers] 

HIRE,  see  Bailments,  64-73  et  seq. 

HONESTY  in  baHments,  8,  29,  53,  85,  117,  176,  184. 

HOTEL,  see  Innkeepers. 

INNKEEPERS, 

iu  a  bailment:  preliminary  points,  228,  229. 

■who  are  innkeepers ;  public  vocation,  230-233. 

who  are  guests  ;  transients,  etc.,  234-236. 

property  of  guest  embraced,  237- 

just  limits  of  relation,  238. 

standard  of  responsibility  defined,  239-245. 

exoneration ;  act  of  guest,  etc.,  246,  247. 

special  contract,  usage,  and  legislation,  248-251. 

ordinary  bailee  iu  other  instances,  252. 

general  rights  and  duties;  recompense,  lien,  253-256. 
INSURANCE,  92. 

LEGISLATION, 

in  general  bailments,  205,  251. 

as  to  carriers,  293,  299,  326,  360,  361,  369,  388,  417. 

inter-State,  509-516. 

as  to  passenger  carriers,  543,  562,  563. 
LIEN, 

of  hired  bailees,  etc.,  99-104,  139. 

of  innkeeper,  256. 

of  carrier,  437,  570,  582. 
LOAN  FOR  USE,  see  Bailments. 

MAIL,  see  Postmasters. 
MORTGAGE,  CHATTEL,  138. 

NEGLIGENCE,  see  Bailments,  6,  7. 
NEGOTIABLE  PAPER,  pledge  of,  153,  154,  196. 

PARTNERSHIP,  see  Carriers,  288. 
PASSENGERS,  see  Carriers  of  Passengers. 
PLEDGE  OR  PAWN, 

definition ;  development  of  law  ;  collaterals,  etc.,  134-137. 

distinguished  from  chattel  mortgage,  138. 

distinguished  from  lien,  139. 


414  INDEX 

[References  are  to  paragraph  numbers] 

PLEDGE   OR  ^KW'i^i  — continued. 

distinguished  from  absolute  transfer,  140. 
classiticatiou  of  chapter,  141. 

I.  The  Pledge  Contract :  three  essentials,  142. 

subject-matter ;  corporeal  and   incorporeal ;    increase,    etc. ;   things  for- 
bidden, 143-144. 
debt  or  engagement,  146, 
mutual  assent,  etc.,  147. 

illegal  pledge  ;  pledge  without  ownership,  148-152. 
rule  of  negotiable  instruments;  agency,  153,  154. 
security  for  whole  ;  various  securities,  155. 

II.  Delivery  in  Pledge  :  contract  distinguished,  156. 
delivery  essential ;  actual  or  constructive,  157,  158. 
delivery  through  agents,  159,  160. 

pledgee  as  agent,  161. 

element  of  notice;  registry;  formal  indorsement,  etc.,  162-164. 

a  permissive  taking,  165. 

two  leading  conclusions,  166. 

III.  Pending  Full  Accomplishment:  situation,  167. 
pledgee  should  keep  possession,  168-171. 
ordinary  care  and  diligence,  172. 

collection  ;  realizing  increment,  etc.,  173,  174. 

pledgee's  employment  of  agents,  175. 

good  faith  requisite,  176. 

right  to  use,  as  on  account,  177-179- 

antichresis  :  interest  from  profits,  178. 

expenses,  how  borne,  180. 

pledgee  of  stock,  181. 

right  of  undisturbed  possession,  182.  ■> 

waiver  or  subordination,  183. 

eifect  of  sub-pledge  or  overdealing,  184. 

pledgor's  rights  ;  attachment;  warranty,  185-189. 

special  contract  terms,  189  a. 

IV.  Pledgor's  Default  or  Fulfilment :  procedure  for  default,  190. 
bill  in  chancery  ;  sale  upon  notice,  191-194. 

peculiar  enforcement;  collection  of  short  notes,  claims,  etc.,  196^198. 

priority;  contribution  among  securities,  etc.,  199-201. 

pledgee  not  bound  to  sell ;  may  sue,  etc.,  202-204. 

local  statute  or  special  contract,  205,  206. 

pledgor's  right  of  redemption  ;  limitations,  207,  208. 

fulfilment  by  pledgor;  tender;  repossession  or  damages,  209-211. 

obligations  of  pledgor  and  pledgee  correspond,  212. 

restoration  of  pledge  ;  mutual  claims,  etc.,  213-217. 

extinguishment ;  renewal  or  extension,  218,  219. 


INDEX  415 

[References  are  to  paragraph  numbers] 

POSTMASTERS, 

exceptioual  responsibility  stated,  224. 
government  and  its  agents,  224-227. 
telegraph  and  telephone  distinguished,  227,  note. 

RAILWAYS,  see  Carriers,  Common  ;  Carriers  of  Passengers,  278,  287, 
411. 

SAFE-DEPOSITARIES,  74,  81. 
SHIPMASTER,  469. 
STOCK  in  pledge,  181,  202. 

TELEGRAPH  AND  TELEPHONE,  uo  baQment,  227,  note. 
TOWING  business,  281. 

USAGE,  see  Contract,  94,  250,  307,  326,  357,  415,  496-500,  580. 

WAREHOUSEMAN,  74,  83,  94. 


ADDENDA:    LATEST  CASES 


185-189.     Right  of  pledgor  to  convey  subject  to  the  pledge,  118  Ga.  612. 
209-211.     Tender  to  redeem  where  the  amount  is  in  dispute  (Neb.  1903), 

97  N.  W.  238.     And  see  140  Cal.  16. 
298-300.     See  125  Fed.  (U.  S.)  445. 
322.  Cite  71  Ark.  571. 

343.  Cite  118  Ga.  616. 

352,  353.    Cite  (N.  J.  Sup.  1903)  56  A.  128. 
362,  363.     Consideration  for  exemj)tion  from  fire  not  necessary.    Carr  v.  Texas 

Pacific  R.,  194  U.  S.  427. 
400-404      Cite  86  N.  Y.  S.  728. 

405-407.     See  (Tenn.  1901)  79  S.  W.  124  (perishable  freight). 
411.  412.     See  124  Fed.  (U.  S.)  975  ;  207  111.  199. 
435,  436.     Cite,  as  to  demurrage,  207  111.  199  ;  82  Miss.  710. 
437-446.     See  207  III.  199  (lien  where  goods  remain  stored  on  cars.     And  see 

411,  412,  as  to  responsibility). 
471-473.     See  82  Miss.  568. 
478,  479.     See  25  Ky.  Law  Rep.  1324. 

492-494.     Cite  (Va.  1903)  45  S.  E.  322  (effect  of  through  way-bill). 
509,  510.     As  to  limiting  liability  to  a  stipulated  valuation,  see  Peun.  R.   v. 

Hughes,  171  U.  S.  477. 
520-522.     Exclusion  of  teamsters,  cabmen,  etc.     See  124  Fed.  (U.  S.)  1016  ; 

72  N.  H.  377. 
523,  524.     See  102  Mo.  App.  202  ;  106  111.  App.  287. 
528.  529.     See  119  Ga.  230  (receiving  a  lunatic). 
539,  540.     Cite  179  Mo.  163. 
564,  565.     Cite  119  Wis.  197  (express  messenger). 
572-574.     Cite  lOS  111.  App.  416  (camera  as  baggage). 

578.  See  84  N.  Y.  S.  248  ;  (Tenn.  1904)  78  S.VV.  1055. 

579.  Cite  98  Me.  98. 
583.  See  77  S.  W.  234. 


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